Commentary: Sleeping women can’t consent to sexual activity
A molest case involving a SMU student demonstrates problematic attitudes regarding consent, says AWARE’s Shailey Hingorani.
SINGAPORE: A fog of confusion hovers over sexual consent and what it really looks like.
In no other sexual assault case in recent history has this been more obvious than the case involving Singapore Management University (SMU) student Lee Yan Ru, who was sentenced on Monday (25 Oct) to 10 months' jail and three strokes of the cane for molesting a woman during an overnight study session in 2019.
The question of consent was central, since the perpetrator admitted to making repeated physical advances towards the victim - ultimately rubbing his genitalia on the victim’s sleeping form and ejaculating on her face, neck and hair - without asking her for consent.
The perpetrator claimed she was “fine” with his advances. He also earlier testified that when the victim said “stop” - woken up by a feeling of heaviness on her body - he interpreted it as “carry on”, and that context mattered in evaluating what “stop” meant.
Even if we write off the defence’s arguments as last-ditch attempts to escape punishment, they are disturbingly echoed in many social media comments made since the judgment was announced.
This confusion over consent worries many women’s rights activists, because acts of sexual violence are defined primarily by a lack of consent.
Yet while most people would agree, in theory, on the basic principle that “no means no”, the perpetrator’s testimony and the comments on social media show an incomplete understanding of how even an expressed “no” plays out in reality.
Worse, in this case, the woman was unable to consent because - as the judge noted - she was asleep when Lee started performing the sexual act on her.
CONSENT IS SPECIFIC
A common thread that runs between the perpetrator’s testimony and netizens’ comments relates to how the victim’s behaviour earlier in the night was “misleading”.
The perpetrator testified in court that he thought the whole night was “a progressive thing” and that she was “okay with my advances”.
His testimony repeats a common misunderstanding about consent: That consenting to one activity once constitutes consent for other activities, or for the same activity at other times.
Yet consenting to kiss someone doesn’t give them the permission to fondle you. Having sex with someone in the past doesn’t mean consenting to sexual activities in the future.
Consent is an ongoing conversation. Even if the victim in the SMU case had verbally consented to the perpetrator resting his feet on her thighs earlier in the night (which she clarified she hadn’t), that wouldn’t mean he had permission to rub himself on her chest in the morning.
The perpetrator should have sought consent again with each “progressive” physical or sexual activity.
Another aspect of the confusion over consent in this case is what one netizen calls the “signals” the victim was sending: “If she was uncomfortable with his advances, why didn’t she leave?”
When asked this in court, the victim herself cited other reasons, including not wanting to “leave a bad impression” as they had mutual friends, and there being “no mode of transport” available in the middle of the night - nothing to do with her desire to engage in sexual activity.
The bottom line is this: Since it’s impossible to divine what another person is thinking and feeling, it is best to actively ask and communicate feelings of being ready, safe, aroused, desirous and physically responsive before engaging in sexual activity.
“STOP” DOESN’T MEAN CARRY ON
Still, how is it possible for someone to hear “stop” and understand it as “carry on”?
There is the misguided belief that women offer “token resistance” - that they typically say “no” when they really mean “yes” - as part of culturally prescribed scripts for sexual interactions. Indeed, the defence in this case relied heavily on this trope, characterising the victim’s attitude as “coy”.
Researchers call these “sexual scripts” - outdated narratives where men initiate and pursue sex and women are gatekeepers responsible for limiting and saying no.
These scripts assume that men have an uncontrollable desire for sex, something we saw in the SMU case too. The perpetrator wanted “release” in a “moment of lust” - playing into the male stereotype of an unmanageable libido.
ASKING FOR CONSENT IS NOT UNROMANTIC
Consent creates a safe space and teaches us to respect people’s boundaries. Yet many complain that asking for consent before each specific activity is unromantic. Much better - the argument goes - to read your partner’s mind without having to utter a single word.
Yet there are many ways of phrasing the consent question that do not “kill the mood”. For example, “does this feel nice? Do you like this?”
Some argue that non-verbal affirmations, such as nodding or noises of pleasure - as opposed to passive signals, like silence or lack of resistance - can be taken as consent. But as humans may be neurologically hard-wired to see what we want to see, we should not rely entirely on non-verbal cues.
Listen to what K Shanmugam had to say about women’s issues:
It’s not that women don’t know how to clearly assert non-consent, which implies that crimes like sexual assault are simply cases of miscommunication. As this SMU case very powerfully shows, even explicit refusals are often ignored or overruled.
Such problems have led some, like the police commissioner of New South Wales in Australia, to suggest the need for an app for couples to establish and record mutual consent before engaging in sex.
Yet critics argue that this approach promotes a contractual understanding of sexual relations. Consent cannot be deduced from an app and it cannot be negotiated ahead of time. It’s about communication in the moment.
A better method might be the acronym used widely by women’s organisations around the world: Consent is as easy as FRIES - it should be Freely given, Reversible, Informed, Enthusiastic and Specific.
Making sure you understand this before engaging in sexual activity is probably easier and way more effective than an app.
AN ACTIVE DEFINITION OF CONSENT
Some jurisdictions have already strengthened consent legislation.
Under its so-called “yes means yes” legislation, Tasmanian law requires the accused to show they did or said something to find out if a person was consenting. Perpetrators cannot rely on the “mistaken, but reasonable belief” defence that consent was provided.
Locally, Singapore’s Penal Code sub-section 90 highlights that consent is not valid under specific circumstances, such as if given by a person who is under fear of injury or wrongful restraint, mentally unsound or incapacitated, intoxicated or under the influence of substances, or otherwise unable to understand the nature and consequence of what they are consenting to.
Would an active definition of consent go further? AWARE’s experiences with sexual assault survivors and interactions with medical practitioners, social workers and the police suggest perhaps a clear, statutory definition of consent, from a public education point of view, is needed.
One possible option is based on case law, referred to in a 2012 case of rape at Sentosa. Although the full definition is too long to reproduce, here’s a paraphrased version for consideration: “Consent is the free, informed and voluntary participation in the sexual activity in question. Lack of resistance and submission to sexual activity, in itself, is not consent as a matter of law.”
Parents and teenagers also suggest including consent as one of the mainstays of sexuality education in schools, so that stereotypical sexual scripts can be debated.
Let’s not keep using the disturbing trope of Prince Charming kissing a sleeping Snow White as a template for real-life sexual interactions.
Shailey Hingorani is head of research and advocacy at AWARE.