Legal Eagle: Knowing when a woman consents to sex

October 23, 2017
Harvey Weinstein


Hollywood film mogul Harvey Weinstein has found himself into a pickle recently. In the last three weeks, more than 20 women have accused the American film producer of rape, sexual harassment, and other forms of inappropriate sexual contact he allegedly committed over the last 25 years. The disgraced Harvey Weinstein was fired from his company and will face disciplinary action from the Directors Guild.

In response, Weinstein has apologised and has shown signs of remorse, but he is also saying that any sexual acts with the ladies had been consensual. The allegedly sexually abused ladies disagree with Weinstein. In light of the above, it raises the issue as to how a man knows when a woman has given her consent to sexual intercourse.

To resolve the issue, a starting point is an understanding of the meaning of the word 'consent'. The concise Oxford English Dictionary defines consent as "permission for something to happen".

It is important to note that under the Sexual Offences Act, 2009 [the Act], a man commits rape if he has sexual intercourse with a woman without her consent and knowing that the woman does not consent or was reckless as to whether or not she consents. The Act also provides that consent does not exist when it is extorted by physical assault, threats or fear of physical assault to the woman or a third party or even when obtained by false or fraudulent misrepresentation as to the nature of the act or the identity of the offender.

In addition to the above, to give consent, the man must ensure that the woman is at the age of 16 and over. It follows, therefore, that a woman under age 16 cannot consent to any sexual activity of any kind. Further, the man must ascertain that the woman is not suffering from any mental illness or incapacity that would not allow her to freely and consciously give consent.




It is also not wise for the man to use alcoholic beverages or any substance or liquid such as Spanish fly or any other kind of aphrodisiac that would stimulate sexual desire and alter the woman's natural thought process so that the woman gives consent without wanting to do so. A woman who is drunk or who is on certain drugs is unlikely to have the mental capacity to give consent.

A man must always remember that silence, passivity or lack of resistance by a woman does not mean consent. It is not the absence of the 'NO'. The real issue is whether or not the woman is saying 'YES, I have consented'. A man should ensure that at every step of the process leading up to sexual intercourse, and including sexual intercourse, the woman has given her consent. For example, a woman may allow a man to touch and kiss her but not to penetrate her. It is sometimes the case that even when there is penetration, the woman may allow penetration for a short time and thereafter withdraws her consent to continue sexual intercourse. Thus, any sexual activity after the woman tells you to stop could be a breach of the law for which the man could be arrested and charged.

From the above, it might appear as if a man who wishes to undertake this task of sexual intercourse should carry a checklist when going on a date with a woman. This is obviously not necessary, but the mental checklist is necessary, especially for first-timers, young persons, and when in doubt. The truth is that when a woman consents to sexual intercourse, the man will know it. He will feel it, and his good sense will tell him that the way is clear for him to proceed. There is no definition of consent to sexual intercourse that could fit all the situations.

Finally, a man must always bear in mind that consent should not be assumed. However, it is prudent for the man to take into account the history of the relationship, whether the parties are married, previous sexual activities, body language, non-verbal communication, appearance of the woman at critical times, among other things. However, when in doubt, STOP.

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