This short post is motivated by that of Amran Gaye who gave various scenarios in which “consent” is presumed to have been given but in reality none was. Growing up, I have heard such a saying, and I used to believe in its “truth”, that girls and ladies do not necessarily mean it when they say “No” to a sexual proposition or advance or “kaysiro” as they say in Kiang. That such a “No” is “faali baalangho. Baalang ko la songho” (the ‘refusal’ of a donkey; conceding after refusal). Hindsight, I think this saying, as given within the context of “kaysiro” is faulty is some fronts. Firstly, “faalo la songho after the baalangho” almost always involves some sort of violence or extreme beating. So force, brute force, and not cajoling is used to make the Faalo yield. Secondly, humans aren’t faalos; they are humans. Love of humans is better gained by mutual admiration, respect, understanding and reciprocity. Persistence in getting an unrequited love overcome shouldn’t be equalled to harassment. When the person says “No” it must be respected until the same person re-initiate the conversation. Thirdly, in the scenario of the faalo, there is no discussion, no views sought, no mutual respect. Consent can’t be obtained in the absence of some discussions, some understanding of the proposal.
And I agree with Amran that “consent” is not merely about saying “Yes” or “No” to a sexual proposition. Even where one thinks that “consent” could be a nuanced term, that “silence” can mean a “yes”, it’s on the proposer to understand the legal ramifications of his or action and to respect the real stance of the proposed. It might not be enough to assume, presume or think that the “silence” means consent.
Thus, in my book, not yours maybe, “consent” in a sexual relationship would mean or meet the following thresholds:
- Consent is active; not passive. That “silence is consent” is a myth. People maintain their silence for various reasons and in any sexual relationship, consent must be active, explicit and freely given. And consent given in one situation cannot be assumed to be given in another situation; consent must never be taken for granted. Every situation requires its own consent. Consent can be withdrawn at any stage.
- Consent is not possible where there is unequal power. A sexual relationship between two people of unequal position, trust or authority is certainly exploitation. Even between persons of equal position or authority, age, status or strength differentials would have to be considered to determine the level of “consent”. A sexual relationship between the head of an organisation or group and a staff, a teacher and a student, a doctor or lawyer and a client, supervisor and supervisee or intern cannot certainly be approved because the less powerful consented. We may even think that the sexual relationship between two 16 years olds or two 30 years olds is always consensus. But not always. Imagine if one of the 16 year olds is a maid in the house of the other 16-year-old. Imagine if the other 30-year-old is a junior staff or a cleaner in the same unit with as the other 30-year-old. We ought to examine power or position differentials in such a sexual relationship.
- Consent is not possible where a person cannot say “NO”. In nearly all situations of rape, including sexual harassment, some form of violence or threat of violence, threats, intimidation, manipulation, coercion, bribery are used against the victim to obtain his or her consent. Where any of these elements is present, consent is meaningless. Of course children, those under 18 years in The Gambia cannot give consent to unlawful sexual relationship. (I use “unlawful” for a reason). And we know too that consent is absent in a sexual act when one intoxicates to stupefy the other or impersonates her husband.
- Where a person refuses to accept a “NO”, the “yes” of the other would have no meaning. The belief that ladies don’t often mean their “No” and would change it (faali balangho) with time, gives men the licence to harass, pressurise, stalk their victims. It’s wrong. A “NO” should be taken even at its face value and at first instance
- Consent is only possible where there are discussions, some understanding of the proposal, of the expectations and outcomes for oneself. One must understand the ramifications of what one is entering into before one can consent to something as onerous as a sexual relationship. It’s called INFORMED CONSENT.