• Ruth Nekura, the legal director at the Initiative For Strategic Litigation in Africa (ISLA) says that a lot of burdens is placed on the victim.
• Clinical Psychologist Felix Opondo adds that consent should also be very specific.
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Sexual consent is agreeing to engage in sexual activity of any kind.
The absence of consent is what constitutes rape or sexual assault.
Often, people express that consent is difficult to decipher, especially among couples who are familiar with each other, for example, those in a marriage in the case of marital rape.
According to Planned Parenthood, consent must be given freely without any coercion or pressure and someone can change their mind at any point of sexual activity.
“Consenting is a choice you make without pressure, manipulation, or under the influence of drugs or alcohol. Anyone can change their mind about what they feel like doing, anytime. Even if you’ve done it before, and even if you’re both naked in bed,” they said.
They also say that consent should come from an informed point of view and it should be enthusiastic.
“You can only consent to something if you have the full story. For example, if someone says they’ll use a condom and then they don’t, there isn’t full consent. You should also only do stuff you want to do, not things that you feel you’re expected to do,” they said.
Clinical Psychologist Felix Opondo adds that consent should also be very specific.
“Consenting to have a sleepover is not an automatic consent to engaging in sexual activity,” he said.
He also adds that consent is not just about one person agreeing to sexual relations, both parties should be in agreement, no matter the type of relationship the persons share.
“Consent is necessary whether you have known each other for years or you just met,” he said.
Ruth Nekura, the legal director at the Initiative For Strategic Litigation in Africa (ISLA) says that should be affirmative.
She said that the way we have been socialised causes a bias within us when deciphering consent.
“The way we have been socialised has given men access to women’s bodies in a way that even the law sometimes has accepted,” she said.
Therefore, a lot of burdens is placed on the victim when they are asked to explain how they showed a lack of consent during the altercation.
“They are told that if truly they were not consenting, then they should have screamed, they should have fought and run out screaming into the night. They are asked why they stayed in the space when they are saying that they were not consenting,” she said.
She said that not all victims of sexual assault act the same way as some may even freeze.
Nekura said that it becomes extremely difficult to prosecute cases where the perpetrator is known to the victim because consent is assumed to be guaranteed.
She said that this impedes access to justice for victims of acquaintance rape when the defence is, for example, asking for evidence is showing signs of struggle such as scars and blood.
“Instead, we should start moving towards looking at the relationship between the perpetrator and the victim so that we can establish whether consent could have been easily disregarded,” she said.