I have been seeing a lot of conversations lately about sexual consent. I always thought sex just happened. Why is everyone on social media talking about consent? Isn’t it too formal to start asking for permission for something supposed to happen naturally?
To put it simply, YES you absolutely must have consent before you can engage sexually with another person. The manner in which this consent is sought and given may differ from person to person but the bottom line is all parties involved must be sure that their partner wants to participate in anything of a sexual nature, up to and including intercourse.
Simply put, ‘sex’ requires two or more consenting adults who are of sound mind. If anyone involved in any sexual activity is not a legal adult i.e. a child, meaning they are under eighteen in Kenya, then even though that activity may be sexual in nature, it cannot be considered to be sex.
It would be ‘defilement’ because a child is not in a position to consent to any sexual activity. Even if they express sexual desire, they are still not considered old enough to give permission i.e. consent, so any adult engaging with them sexually is committing a criminal act, punishable by law, as well as an immoral act.
Furthermore, if a person involved in any sexual activity is not of sound mind then, again, that activity may be sexual in nature but cannot be considered to be sex. That would be considered to be rape or defilement, which is also a crime punishable by law, in addition to being an immoral act. It’s true that sometimes adolescents engage sexually with each other, meaning that they are both/all unable to give consent per se. While this is murky legal ground since a ‘perpetrator’ is not necessarily clear in such cases, it is still important for us as adults to guide them in the principles of consent and the importance
Another category of people who may not be considered to be in a position to give consent are those in a situation in which there is a power differential; if one person is perceived to be in authority of another, then the subordinate in that situation is considered to be unable to consent, even if they are both adults of sound mind. This is because the assumption is that the subordinate would suffer a negative consequence by refusing to engage sexually with the person who has the power advantage.
There is a narrative that seems to imply that people are now afraid to connect sexually lest they are accused of crossing an imaginary line. This column is not long enough to address the many ways in which this is not true or the many other ways in which problems and misunderstandings can be avoided. If all involved parties are known to be consenting adults of sound mind but you’re still hesitant, let’s talk briefly about certain specific situations that you may want to avoid;
If someone works for you, there is a definite power differential there so pursuing a sexual relationship with them can be risky, the implication being that they are unable to turn you down without a negative consequence by you to them.
If for some reason a person has no choice in the matter, or will suffer a negative consequence e.g. a missed promotion or opportunity such as a business tender, then do not engage sexually with them because the assumption is that they cannot consent or turn down sexual advances without unfair bias by you, against them.
If a person is intoxicated, even if they had implied that they would love to engage sexually with you, do not do it because anyone under the influence of drugs, alcohol or anything that could alter their mental clarity is not considered to be of sound mind at that moment. The absence of ‘a sound mind’ is the difference between sex and rape. Wait until they are sober and clear-headed.
If they change their mind, even after you have passed the so-called ‘point of no return’, do not do it because consent has been revoked; any progress into a sexual engagement would be a violation of their right to consent. That is how many people find themselves on the end of a rape charge.
Finally, “when in doubt, don’t”. If you are genuinely concerned that you may be crossing a line, don’t do it. While these scenarios are not intended to be conclusive in their nature because sexual contexts differ so much, I do hope that you better understand the reason for, and the benefit of consent.
Maggie Gitu holds an MA in Marriage & Family Therapy. She practises as a Marriage, Family & Sex Therapist. Reach her at
[email protected] or via her Facebook page: Maggie Gitu