last updated June 2019

Sexual assault is distinguished from non-assaultive forms of sexual contact by the absence of consent, “the legal dividing line between rape and sexual intercourse.”[1] Generally, nonconsensual sexual contact is obtained through coercion or the use or threat of force. When these elements are present, consent is clearly absent. For a number of reasons, however, it is important to define sexual assault in terms of consent instead of in terms of force or coercion. However, the definition of consent is not without disagreement. In his 2017 article, Stephen J. Schulhofer identified three different forms of consent/non-consent:

The first option says that to prove unwillingness, there must be some verbal protest. The second option says we should assume non-consent unless there is clear affirmative permission. In the first option, silence and passivity always imply consent; in the second option, silence and passivity always mean no consent. In the third option, silence and passivity can imply either consent or non-consent, depending on all the circumstances.[2]

Ultimately, Schulhofer identifies the second option, affirmative consent, as the “right” standard.[3]

A consent-based definition encompasses situations in which force or coercion may not have been present, but the victim is physically or mentally unable to consent. The victim may, for example, be unable to give consent to the sexual contact because of disability, age, or the influence of drugs, alcohol or medication; perpetrators may also force sexual contact when the victim is asleep or unconscious.

This principle of consent underlies the principle of statutory rape. Minors cannot give consent as a matter of law in some jurisdictions solely because of their age.

Additionally, a consent-based definition avoids potential ambiguities associated with the terms “force” or “coercion” because it emphasizes the victim's perspective. However, not everyone completely agrees with this perspective. Feminist theorist Catherine MacKinnon and others have argued that a consent-based definition may actually lead to greater harm to the victim:

The victim's thoughts, actions, and rape shield rules notwithstanding, often even sexual history are put on trial, since ‘the distinction between whether someone was raped or just had sex, when seen in consent terms, is ultimately defined by how B felt about it, rather than in terms of what A did to B.’ Without consent as an element or a defense, victims will be spared potentially humiliating and traumatic questioning on the topic.[4]

Some inquiry into the victim’s state of mind and lack of consent is sometimes necessary. This is especially so when behaviors that may not be viewed as coercive by the perpetrator have the potential to be highly coercive as experienced by the victim. Behaviors can be coercive because of the larger context in which they occur. Research has shown that among young people in Australia (ages 12–20), 1 in 4 believe that it is normal for men to pressure women “do sexual things.”[5] Similarly, because of assumptions about what constitutes expected “masculine” and “feminine” behaviors, the coercive nature of the perpetrator's actions may not be clear, even though the sexual contact in question was unwanted. The same study found that aggressive behavior on the part of the perpetrator may be viewed and excused as “typical” male behavior, even though this behavior—particularly when combined with the perpetrator's larger physical size—was perceived as serious and threatening by the victim. Of young people surveyed in Australia, 60% agreed with the statement “if a guy wants to have sex with a girl, it is up to the girl to make it very clear if she doesn’t want sex.”[6]

Other factors—even those unknown to the perpetrator—may cause the victim to experience certain behaviors as involving force or coercion. For example, a prior sexual assault may cause the victim to interpret sexual overtures as significantly more threatening than they were intended. Because of these prior experiences, she may “freeze” or become extraordinarily passive when sexual intimacy is initiated. Sexual contact in such situations is nonconsensual, but may not be understood as such under a definition that focuses primarily on the perpetrator's behaviors and not the victim’s experience.

It may still be useful, at times, to look to coercion and force as evidence that consent was not freely given. While many conceptions of force and coercion may look first to evidence of physical force or threats of physical force, interpersonal and social coercion may also be present. Social coercion in particular is often overlooked. Interpersonal coercion includes “nonphysically threatening, manipulative or controlling actions by one’s partner in an attempt to solicit sexual activity” while “ever-present” social coercion refers to “the pressure to adhere to sex role obligations by individuals in an intimate relationship given the social and cultural expectations of their sexual roles.”[7]

Finally, a consent-based definition is more consistent with the ways in which other kinds of laws distinguish between assaultative and non-assaultative physical contact with others. As explained in one article, a definition of sexual assault based on consent is one that:

recognizes and ratifies a simple principle . . . our personal sovereignty. We have the right not to be acted upon unless we wish to be acted upon, and communicate that wish to the actor. Our silence is not our permission. You may not take my wallet simply because I have not said you cannot have it.[8]

Using consent to distinguish between assaultative and non-assaultative forms of sexual contact does not mean that adults must have a written, signed agreement before engaging in physical intimacy. Nor does it even mean that partners must verbally express their consent to sexual contact. "Consent for an intimate physical intrusion into the body should mean in sexual interactions what it means in every other context—affirmative permission clearly signaled by words or conduct."[9] There are many ways to make this permission clear through verbal and nonverbal cues. Permission is not manifested, however, though silence or ambivalence.

This focus on manifested consent (when consent can be manifested) avoids potential difficulties associated with the scope of the definitions of coercion and consent. Theorists have disagreed about the extent to which interpersonal or societal coercion renders sexual contact assaultative. MacKinnon has questioned whether consent can ever be freely given by those who have historically been relegated to subordinate positions within society. She argues that the “law of rape presents consent as free exercise of sexual choice under conditions of equality of power without exposing the underlying structure of constraint and disparity.”[10]   

Kersti Yllo, in contrast, has argued that interpersonal coercion (for example, threats to withhold affection) and social coercion (for example, the pressure a woman might feel because of cultural expectations and norms to engage in sexual activity with her partner), do not render the contact in question an assault. She argues that “[o]ppressive as such coercion may be, calling it rape means substantially expanding and, at the same time diluting, the meaning of the word ‘rape.’”[11]

Focusing on manifested consent in understanding the line between assaultative and non-assaultive sexual contact helps reconcile these positions. Not every form of sexual contact is assaultive simply because of the historical unequal status of men and women in society. If consent to sexual contact is manifested (as freely as is possible in such a context), the conduct is not sexual assault. At the same time, however, there are situations under which interpersonal and social threats—particularly those associated with abuse of a position of authority or trust—could result in a woman passively submitting to sexual contact. In such situations, a focus on whether consent was affirmatively manifested can help distinguish between consensual and nonconsensual (assaultative) sexual contact.