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Saturday, January 20, 2018

Talk about consent

Guest Column By Olivia Norlin Rieger

Consent.  A simple enough word, right?  Essentially it means two parties “agree.”  When consent is used in the context of sexual assault and rape, the word consent is a bit more complicated.  First, two parties may “agree” to engage in sexual activity but not everyone can consent legally consent to sexual activity.  In the State of Montana, a person cannot engage in sexual activity with another if that individual is: mentally defective or incapacitated, physically helpless, overcome by deception, coercion or surprise, incarcerated, in a youth care facility, is admitted to a mental health facility; or, the person is under the age of 16.  

The legal technicalities of consent are difficult to understand.  As a prosecutor, I see one of the biggest issues regarding consent as a difference in age.  A person who engages in sexual activity with an individual under the age of 16, and the person is four or more years older than the youth, the offense of Rape has been committed.  If the person is under the age of 16, and the other person is three or more years older, the offense of Sexual Assault has been committed.  Both offenses are felonies.  Both can carry long prison sentences.  Both leave the offender registered as a sexual offender.

The law is unforgiving of how much “she wanted it” or how much “you are in love.”  The fact of the law is that a person under 16 years of age CANNOT consent to sex.  Period.  It doesn’t matter if you “okayed” it with her dad, or his parents really like you, or he is sexually adventurous, or you just couldn’t help yourself because you were both attracted to each other.  The only thing you need to think about when you are involved with someone under the age of sixteen and the subject of sex comes up is that your partner cannot consent to sex if he or she is under sixteen.  

Another common consent issue that occurs in cases involving sexual assault and rape is alcohol.  Historically, alcohol and sex have gone hand in hand.  What the public needs to remember about alcohol and sex is that there are several instances when an individual cannot consent to sexual activity because he or she has had too much alcohol to drink.   Drinking too much is not an exception to law when it comes to sexual assault and rape.  In fact, drinking too much is just another excuse that a rapist uses when he wants to blame his victim for his criminal activity.  Alcohol is known to become a factor in ignoring sexual boundaries but does not cause sexual assaults or rape any more than putting gasoline into your car causes you to speed on the Interstate.  

Consent is not something that is implied.  It is expressed.  If a woman wears a nice cocktail dress to a party, it does not imply that she is asking to be raped.  Take, for example, a woman wearing a nice cocktail dress to get money out of the ATM.  Is there anything about her clothing that screams “mug me?”  Absolutely not.  Consider the plumber who has parts of his backside showing while he fixes the sink. Is there anything about that scenario that would logically lead the homeowner to believe he wants to have sex with them?  Again, absolutely not.  While clothing styles become more risqué in style at times, nothing about that clothing is an invitation for unwanted sexual assaults or rape.  There is nothing in the law that accepts “she wore a short skirt and low cut top and that invited me to rape her” as a defense to the rapists that are currently living at Montana State Prison, or any other prison across the country for that matter.  

As a society, it seems we feel safer when we can blame the victim for sexual assault.  Maybe it is because we fear the “dark alley rapist” when studies have shown that the growing majority of rapists are acquaintances of victims of sexual assault and rape.  Our society seems to blame victims for wearing certain clothing, drinking and we even blame our children under 16 for being “older than their chronological age” such as was referenced in a recent case in Billings.  That leaves most advocates for sexual assault and rape victims wondering “why” – especially when consent is such a huge issue in these cases.  Consent, as previously mentioned is expressed.  Consent is not implied.  Victims do have the ability to say NO but it takes perpetrators of sexual violence to listen to those wishes, and not ignore them.  Remember, some consent is statutory and no matter what, a person cannot consent to sexual activity.  

Before you engage in sexual activity with another person, make sure you know 1) Can they consent (are they of age, mentally capable, not intoxicated to the point they cannot consent, etc)?; and 2) Are they actually consenting to sex with you.  You may wonder “how do I do this?”  Well, just ask them.  You are about to share an intimate moment, this is not the time to be shy about whether or not they are also consenting to the activity – expressly.  Consenting is not something to guess about, or wonder about, or take your chances.  It is worth talking to your partners about consent.  

Lastly, if enough parents and grandparents would discuss “consent” with your children and grandchildren, they would know what consent means.  These children would know that they can say no.  They would know that they cannot consent to sex if they are under the age of 16.  Maybe then we, as a society, would have a better grasp on prevention for this terrible crime.  It is a community problem and now is the time to act.


Rieger can be reached at countyattorney@dawsoncountymail.com.

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