What is Sexual Consent?

According to a survey done on about 500 respondents, both males and females, by Association of Women for Action and Research (AWARE):

54% of the respondents had experienced some form of workplace sexual harassment, of which, 27% experienced harassment by their colleague and 17% by their superior. 12% of them had received threats of termination if they did not comply with the requests of the sexual harassers.

79% of the victims were women.

Although sexual harassment – either at the workplace, or at home, has been extensively written about and discussed, it still remains a problem. This topic eventually took centre stage in the massive #metoo movement that hit its peak in 2018 where prominent and high-profile men were accused, and eventually charged with sexual misconduct.

However, while the #metoo movement promoted female empowerment, and the courage to speak up against injustice – it also partially antagonised males, some of whom may actually be innocent.

One of the biggest misunderstandings behind some of these cases was due to the lack of understanding of what exactly constitutes sexual consent.

Definition of Consent: Permission for something to happen or agreement to do something.

In Singapore, there is no statutory definition of consent, although there are several key principles in the Penal Code that are relevant, and used in our Courts.

Consent given by a victim labouring from unsoundness of mind or/and intoxication is invalid consent.

According to Section 90(b) of the Penal Code, consent given by a person who suffers from an unsound mind, or is heavily inebriated is not valid, lawful consent. This is because they may not have a firm grasp of reality, and of what is happening.

Consent must be given in relation to the act of penetration.

As laid out in Section 375, consent which has only been given to any other sexually intimate acts such as kissing and fondling is not valid consent for penetration. If penetration occurs without consent, it will be considered rape.

Consent given out of fear and terror is not consent.

According to Section 90(a), if consent is given by a person under fear of injury or wrongful restraint to the person, or to some other person – it will be considered invalid.

Consent cannot be extrapolated to where it is absent.

Rape or sexual assault may even occur in between consensual sexual acts a couple engages in. For example, if a couple is engaging in a consensual sexual act and one of them proceeds with an action that puts the other under fear of injury or wrongful restraint, even after repeated warnings to stop, then the consent will no longer be valid.

Even if the couple proceed to have consensual sex right after that, the action prior to that would still be considered non-consensual and therefore, a crime.

Consent can be conditional.

If there are preconditions to sexual intercourse which are not met, then it would amount to a withdrawal of consent to sexual intercourse. For example, if both parties agree to a certain outcome such as “no ejaculation” but the partner does it anyway, then it would negate the consent as the agreement was not met.

Marital Rape

Currently, under Section 375 of the Penal Code, the law provides immunity for husbands from being accused of marital rape unless certain exceptions are met. However, this is set to change, and possibly abolished as part of an ongoing review of the Penal Code in 2019.

While it can be tricky navigating what is right and wrong when it comes to sexual intimacy, it is always good to communicate with your partner and respect their feelings – just as you would expect them to respect yours.

Our Criminal Lawyer, Mr Amarjit Singh Sidhu, has defended numerous clients who found themselves in situations ranging from molest cases to expatriate crimes. With vast experience in Singapore’s laws, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, or if you have been caught in a situation, feel free to contact us for a consultation.

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