Last week, we defined rape as a *crime crystalised in the Penal Code. There is a misconception that rape is sex gone wrong, or bad sex, or a misunderstanding in sexual interaction. But rape differs tremendously, from sex.
Sex in this context, read sexual intercourse, is sexual contact between individuals. Often when speaking of sex, it entails penetration. However, in many lived realities, it actually doesnt. The same way, sometimes it culminates in an orgasm and other times, it doesnt.
Rape, on the other hand, is sexualised violence. It is a human rights and public health problem. It is an act committed on a person without that person’s consent. In Setswana, Ke go dirisa motho yo mongwe botlhaswa, ntleng ga tumalano. For there to have been said to be rape, there must be, in the converse, the absence of consent. This then begs the question, what is this consent that we speak of.
Consent is essentially an agreement or permission to do something. Agreements, at law, contain an offer, an acceptance of that offer and the relevant mental faculties to be able to either make the offer, or accept it. Then of course, add the many nuances and layers of everyday life and engagement, and mix that with personalities and a society full of people who take pleasure in taking advantage of lifes supposed complexities.
The Brits explained consent, in the context of sexual intercourse, with a tea offer metaphor. So, essentially you when you offer someone a cup of tea, it could go one of various ways. If you ask a person if they would like a cup of tea and they say yes, then you know they want a cup of tea. If they say, they aren’t sure, then you can make them a cup of tea, or not, but be aware they might not drink it, and if they drink it, don’t make them drink it. Just because you made it, it doesn’t mean you are netitled to make them drink it. If you offer someone a cup of tea, and they say “no thank you” then don’t make them a cup of tea at all. Don’t make them drink tea. Don’t get annoyed at them for not wanting tea. They just don’t want tea.
They might say, yes. And then when the tea arrives, they don’t want it. Although that’s a little annoying because you’ve gone to the effort of making the tea. But they remain under no obligation to drink the tea. Some people change their mind in the time that it takes to boil the water, and brew the tea. It is ok for people to change their mind. And you
If the person is unconscious, then don’t make them tea because they cannot answer the question, do you want tea. If a person started off drinking tea and then passed out while drinking it, don’t force it down their throat. Take the tea away. Unconscious people don’t want tea.
If someone asked for tea last week, it doesn’t mean they want tea made for them all the time. They dont want you to come to their house unexpectedly and make them tea and force them to drink it.
The tea analogy makes consent more palatable and easier to understand.
I want to extend this metaphor though beyond what the Brits have said. If you have to tell someone that if they decline the tea then you will either hurt them, or that it will end your relationship with them or that you will go searching for it elsewhere, then that person still does not want tea, and you should not force them to have it.
In fact, even beyond the tea metaphor, when someone says yes to one act, it is not an automatic acceptance of other things.
Positive consent is essentially when your words and actions both clearly and unquestionably show that you want to be part of sexual activity. Consent however, is a journey.
The fact that it was given at the beginning does not mean it can continue, because everyone has control over their own bodies, at any given time. That’s where ongoing consent comes into the picture. Essentially, a person who has previously given their consent, should continuously, and throughout the act of sex, give consent. This means that at any point, the consent can be revoked.
An agreement, in sex, is for the present. That means there has to be a continued offer and acceptance, in the right mind frame. This means if a person is drunk, they cannot enter into an agreement.
And this brings us to informed consent. If a person is not willing or coherent or willing to consent, and if a person cannot comprehend the risks or benefits of an interaction, and if a person does not want an act, then they cannot be said to have given informed consent.
But we have this idea of who a rapist is, and who a rapist could be. So in the next contribution, we explore the question, who is a rapist? Please let the children read this.