Just because it seems accurate doesn’t mean it’s true. It’s a popular maxim used almost everyday. It has in fact over the years, become a concept of social interaction that has survived in several languages from Dutch to French, Spanish and even Portuguese. Simply put, this statement proposes that the lack of response to an action implies approval of that action, although tacit.
While this may hold water in such situations as when the silence is voluntary or is preceded by an action that invokes the thought of consent, it in no way validates the same thought in many other scenarios, like in legal contracts or sexual relationships. For the sake of specifics, I’ll focus on the latter scenario.
First though, let’s give a definition of the two keywords in this statement — silence and consent
The Lectric Law Library defines silence as
the state of a person who does not speak, or of one who refrains from speaking.
This does not apply to a dumb person, of course, but to people who although have the ability to speak do not for certain reasons, some of which will be broached.
Consent, on the other hand is defined by RAINN (Rape, Abuse & Incest National Network) as
an agreement between participants to engage in sexual activity.
It mentions that positive consent is shown in saying stuff like
Is this okay?
Can I take off your clothes?
Yes
I’m open to….
Planned Parenthood considers 5 terms to convey the thought of consent:
Consent is freely given
Consent is reversible
Consent is informed
Consent is enthusiastic
Consent is specific
In other words, it’s not enough to not say no. Consent demands that you actually hear a yes and the yes must have been said without any fear that something might or might not happen if a no is said.
Consent comes from the physical and verbal act of saying yes!
Silence is not a yes. And it’s in fact not a no either. It’s just what it is — silence. Nothing!
Interestingly, numerous organizations are spreading this thought while creating awareness for the concept of affirmative consent. The state of California in the United States, for example, enacted the first affirmative consent standard for colleges to use in 2014. Since then, many states and countries have followed suit. Hopefully, more African states would adopt this framework as there’s still a lot of work to be done with regards to curtailing and prosecuting rape offences in this part of the world.
As we all keep trying to make our environment free of sexual offenders, it’s imperative that those in offices of legal authority understand that in prosecuting sexual misbehaviours, the responsibility for demonstrating consent (or lack of consent) should always be shifted from the survivor to the alleged perpetrator. Rather than asking survivors to demonstrate evidence of some sort of resistance in order to prove a lack of compliance, the right thing should be to ask the perpetrator to provide evidence of active, explicit consent from both parties