Definition of consent

How is consent defined under the law?

FAQs about consent

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• 1 “I [the victim] was drunk.”

  Section 90 of the Penal Code states that there is no consent if the person giving the consent is unable to understand the nature and consequence of their consent due to unsoundness of mind, intoxication or influence of drugs. Thus if a person is so drunk as to be unable to understand the nature and consequence of their consent, this is not considered consent under the law.

• 2 "I liked the person and we were dancing closely earlier in the night.”

  Consent must be voluntary. Consent is an agreement between those involved to engage in sexual activity. In Public Prosecutor v Ong Mingwee, the accused claimed that the victim had tried to seduce him by dancing closely and sexily with him at Zouk and asking him to be her boyfriend. The Court found that “by no stretch of the imagination can the victim’s conduct of dancing in what he claimed to be a seductive manner be construed to mean that she would therefore be willing to have sex with him subsequently in his flat. Even his claim that she asked him to be her boyfriend… cannot be interpreted to mean that she would therefore be prepared to have sex with him.”

• 3 "I was so scared I did not struggle.”

  In PP v Teo Eng Chan, four men had sex with a 16-year-old girl. They claimed that they believed she had consented, even though she had not. The girl did not struggle. The accused argued that the absence of injury and struggle indicated consent. The court rejected this argument and found that even though there was no injury or resistance, there was no consent. The victim had submitted because of the presence and threats of the four men and the fact that she was in a deserted quarry on a dark night. Submission does not necessarily imply consent. The judge in Public Prosecutor v Iryan bin Abdul Karim and others held: “Submission of her body under the influence of fear or terror is not consent. There is a difference between consent and submission. Every consent involves submission but the converse is not true.” In Augustine Foong Boo Jang vs Public Prosecutor, it was held that there was no consent even though the maid did not struggle against her male employer. The dominant position of an employer over his maid and her financial dependence on him caused the maid to submit to the employer’s advance even though she did not consent to it. Fear, as an emotion, has a paralysing effect. Therefore, it is normal for someone who is fearful not to struggle.

• 4 “The person is/was my partner.”
  A past intimate relationship does not constitute consent. Each (new) sexual act must have the consent of each participant.

  Sexual assault may even occur in between consensual sexual acts. A participant’s consent cannot be conveniently extrapolated to where it is absent, even if that participant has consented to sexual acts prior and after the act in question. In PP v Mohamad Liton, the parties had consensual sexual relations at one point after the break-up, but then the man tied her up, raped her at knifepoint, and committed sodomy on her. She then had sex with him once more willingly. The court found that there was no consent even though the parties had sex before and after the incident.

• 5 "I thought the person was consenting."

  In P v Teo Eng Cha, the judge held that even if any of the men had actually mistakenly believed that she had consented, he had come to that belief without due care and attention, and the defence could not stand. In assessing whether there was consent, the court would pay attention to the surrounding circumstances of the sexual act in question, such as signs of struggle, coercion or inebriation. An episode of Talking Point discussed what constitutes consent. (Other questions that were raised during filming not captured in this video are listed below.)

  

  You can also view a video explaining consent using a simple analogy here.

Common attitudes about sex and consent

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• 1 Does a person's acts before passing out constitute consent?

  No, they do not. Even if someone is naked and saying “Have sex with me!”, the moment they pass out, they are not consenting anymore.

• 2 Some people say "no" is just part of the courtship and means you have to up your game.

  If you treat a “no” as a”no”, the worst that happens is that you don’t have sex that one time. If you treat a”no” as a “yes”, the worst that happens is you rape someone. If you care about not raping people, don’t do that.

• 3 Some people say when you should expect there to be sex when you go to a sleepover - especially if no parents are around

  That’s a silly assumption. But even if both parties are expecting a sexual encounter, anything can happen – you can get tired, you can fall ill, you can quarrel, you can just find you’re not in the mood. So even if people are intending to have sex, consent is still an issue.

• 4 Some people say having to check and ask "ruins the mood".

  We receive a lot of messages from the media, from pornography, that sex is somehow instinctive – something we know how to do by magic and telepathy. But you ought to be able to talk about sex. For instance, to be responsible, you have to be able to talk about condoms and contraception – so why not consent? Also, if you can talk about what you like or don’t like, what you’re comfortable with, what you’re in the mood for, sex is not just more respectful, it can be more enjoyable.

• 5 Some people say that parents don't want consent to be taught, because young people just shouldn't have sex before marriage.

  They are misunderstanding two separate things. One is about your own choices – when do you decide you’re going to have sex? The other is about the other person’s choices. Are they agreeing to have sex with you? Even if you only have sex when you are married – you still need to have consent.