May 20, 2020

The Sexual Consent Form: All You Need To Know | Legalnaija



The history of rape and sexual assault dates as far back as the creation of man. Originally, rape was thought to be, and defined as, a crime committed solely against women but rape of males is now commonly criminalized and has been subject to more discussion than in the past. Anti-rape activists have initiated movements seeking to combat violence against and the abuse of women to give women a sense of security. Unfortunately, what has now become common is some women, driven by revenge and self-interest or based on false memories, make spurious allegations of rape. It is no surprise that people in today’s world would rather sign a consent form before engaging in sexual activity than not, in an attempt to protect themselves from groundless accusations that could ruin their reputations.

The scandalous Kobe Bryant sexual assault case of 2003 began when the media reported that the sheriff's office in Eagle, Colorado, had arrested professional basketball player Kobe Bryant in connection with an investigation of a sexual assault complaint filed by a 19-year-old hotel employee. The lady accused Bryant of raping her in his hotel room in early July. She filed a police report and authorities questioned Bryant about bruising on the accuser's neck. Bryant admitted to a sexual encounter with his accuser but insisted the sex was consensual. The case was dropped after Bryant's accuser refused to testify in the case (1). We do not and may never know if indeed it was consensual sex. Also, notable is the Rosewood massacre of 1923 which was founded on a white woman’s false accusation of rape against a black man (2). The Rosewood massacre was an ugly situation as many deaths were recorded. As the saying goes, experience is the best teacher. Even if such experience was another’s.

With the constant people coming out against celebrities for sexual molestation, harassment, rape charges, celebrities, athletes and high-powered business executives who want protection from potential rape or other sexual charges are obtaining consent forms for their partners to sign, acknowledging the pair is about to engage in consensual sex (3). These forms are however not solely for the celebrities or the high-ups.

The Sexual Consent Form is an agreement that allows two (or more) adults create boundaries and share permissions to create an atmosphere that is comfortable among parties. The agreement is a more communicative, more comprehensive, more explicit and clearer model of sexual consent than the "no means no" or "yes means yes" approach. Succinctly, the sexual consent form is an evidence of consent. Individuals who want to engage in acts that may involve sexual intercourse, or other related activities may want to sign an agreement in that regard. The parties can decide which sexual acts they wish to perform ahead of time, allowing for a mutually enjoyable and safe sexual environment. Since it is probable that things may get heated or escalate, the ‘Ratchet Clause’ offers options for participants to add sexual activities to the existing list by entering them into the consent form or agreeing to them verbally. The sexual consent form includes an ‘Accidental Violation’ section allows the parties decide whether it would be treated as an accident or as an assault should there be a violation of the agreement without fault or intent. Furthermore, the ‘Failure to Perform’ section recognizes the possibility of an inability to perform the activities listed on the form and does not consider this a violation of the agreement. Essentially, the sexual consent form is consent made easy, nearly perfect.

One may call this agreement a contract seeing as it satisfies the requirements or the basic elements of a contract as stated in Bilante International Ltd. v. NDIC [2011] 15NWLR (Pt. 1270) 407, which includes offer, acceptance, consideration, capacity to contract and intention to create legal relation. However, such document will hold no legal weight as a contract in court for the primary reason that enforcing such an agreement will be contrary to public policy, public morality and may cause legal difficulties. It is necessary to clarify that the sexual consent form is not a contract in the strict sense but may be good enough as proof of consensual sexual relations between the parties.

There have been concerns that this seemingly simple fashion of establishing consent poses more menace than it genuinely attempts to solve. Professor Felicity Gerry QC, a specialist in sexual offences, says that if someone signed a consent form but was later forced to have sex, the document could undermine a rape complaint (4). People may even be coerced into signing an agreement. Felicity Gerry opined that reducing Rape, a serious crime, to a civil matter or a breach of contract is wrong and should not be endorsed. Like any formal agreement, the sexual consent form can be abused or used as an instrument to commit crime.

 People want a safe and secure environment for interpersonal relationships. Considering the possibility sexual consent to create chaos, the easier way to alleviate false rape allegations would require that laws are enacted to prosecute any person who makes false rape allegations. In the United Kingdom, Individuals suspected of making a false allegation of rape may be charged with the civil crime of "wasting police time" or the criminal charge of "Perverting the Course of Justice”. Over a five-year period ending in 2014, a total of 109 women in the United Kingdom have been prosecuted for crimes related to making false accusations of rape (5). However, this also does not come without its downsides (6).

Conclusively, sex contracts have been introduced to help the conversation surrounding consent, to avoid misunderstandings, and to create a more pro-active approach to ensuring that sexual partners are willing participants. The sexual consent form, disguised as a ‘knight in shining armour’, has demerits which overwhelm its benefits and while the intentions may be pure, it is an overly-simplistic and potentially harmful solution.


 

References

1. Johnston, Lauren. Bryant statements to police at heart of hearing. CNN. February 2, 2004.

2. Bentley, Rosalind. The Rosewood Massacre: How a lie destroyed a black town. February 17, 2017.

3. Thomas Heath, Steve Wyche. Pre-Sexual Consent Forms For Wary Athletes.

4. Goldhill, Olivia. Sexual consent contracts’ are now a thing. Would you sign? July 15, 2015.

5. Laville, Sandra. 109 women prosecuted for false rape claims in five years, say campaigners. December 1, 2014.

6. Gibson, Megan. The Problem With Prosecuting Women for False Rape Allegations. December 3, 2014.

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             


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