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What Does “Affirmative Consent” for Sexual Activity Mean?

Oct. 21, 2020

If you’re a college student, understanding the complexities of consent is important to ensure that you are engaging in safe and ethical sexual activity. It is imperative that you take the time to communicate with your partner while engaging in sexual activity. Understanding the ins and outs of consent can help guide you through the conversations you should be having before, during, and after engaging in sexual activity.

If you have been accused of engaging in non-consensual sexual activity, you should seek out legal guidance. As a Title IX and criminal defense attorney in Los Angeles, California, Alec Rose Law Office can help you navigate the legal process during this difficult time.

What is Affirmative
Consent in California

The state of California recognizes affirmative consent as being the standard of an agreement to sexual activity. Affirmative consent is the conscious and voluntary agreement to engage in any sexual activity.

Affirmative consent is NOT:

  • The absence of physical resistance

  • Silence or a lack of verbal protesting

  • Unconditional (if not mutually agreed upon it being so)

  • Irrevocable

Affirmative consent IS:

  • Expressly given

  • Ongoing throughout the entirety of any sexual activity

  • Able to be revoked at any time

  • Conditional if you or your partner want it to be

Understanding what is and is not considered affirmative consent can help you be sure that you are participating in sexual activity that is mutually agreed upon and mutually enjoyed. As a rule of thumb, it is always necessary to continually communicate with your partner to make sure that they are comfortable with what is or will be happening. The lack of a “no” does not mean that you have received a “yes.” Affirmative consent should be explicit and clearly communicated at all times.

Affirmative Consent can be Conditional

Affirmative consent can be conditional, meaning that if you or your partner only consent to sexual activity if certain conditions are met, then those conditions must be met for the sexual activity to be considered consensual.

For example, if your partner will only consent to sexual activity if a condom is worn, but you proceed to engage in sexual activity with no condom, then you have just had non-consensual sex. The conditions necessary for you and your partner to consent must be met fully throughout the entirety of the sexual activity to maintain consent.

In the Case of Incapacitation

Incapacitation means that you or your partner are unable to agree to sexual activity due to a myriad of factors. For example, affirmative consent cannot be given if you or your partner are unconscious or under the influence of a substance that alters control of the body. Additionally, if you or your partner are not aware that any sexual activity is occurring due to incapacitation, then consent is not able to be given.

Before engaging in sexual activity, check-in with yourself and your partner to make sure that affirmative consent is able and willing to be given by both of you.

How to Avoid Failure to Obtain Affirmative Consent

Following the steps laid out below can help you gain and maintain affirmative consent with your partner.

  1. Actually ask your partner verbally for consent: “What would you like to do?” “Do you want to have sex?”

  2. Keep communicating with the partner through all sexual activity: “Are you enjoying this?” “Does it feel good?” “What can I do to give you more pleasure?”

  3. Communicate after sexual activity: “Did you enjoy it?” “Do you want to stay here or may I walk you home?”

  4. Realize that hooking up with someone who is a stranger or not a close friend/partner may lead to misunderstandings and misinterpretations, also a lack of awareness of an individual person’s typical signs of intoxication.

  5. Avoid sex when either participant is significantly drunk or high.

  6. Pay attention to whether a partner is highly responsive and actively participating in sexual activity.

Constant communication and respect for your partner’s comfort and enjoyment will help you ensure that you are engaging in safe, ethical, and consensual sex.

How an Attorney Can Help

According to the Center for Family Justice, 28% of victims report their sexual assault to the police. The Alec Rose Law Office can guide you through the legal process if you have been accused of engaging in non-consensual sexual activity. I will fight for you and seek the truth. If you are located in Los Angeles, or surrounding counties in Southern California or you are a student at UCLA, the Claremont Colleges, or another California University, contact me today for legal help that you can trust.