You’ll Take Consent To Meet GDPR Norms But ‘No’ Means ‘Yes’ When It Comes To Sex?!

Posted: July 9, 2018

Recently, the European Union made a big update to its privacy laws, which make the user’s Consent crucial. We need to replicate the GDPR model for consent in case of intimacy as well.

The buzzword in the digital space of late has been ‘GDPR’. For the uninitiated, the General Data Protection Regulation (GDPR), the European Union’s data protection law has led to all and sundry across the world – from big corporates to bloggers scrambling to get consent before they capture or use any private data of a user/ visitor/ subscriber etc.

With the recent threats to data privacy and the spread of fake news, technology giants such as Google and Facebook have been forced to make changes to their algorithms. It is great that steps are being taken so that an Internet user has protection for their data rights.

You know what’s amazing though? In a country like India, with a culture that is steeped in patriarchy and entitlement, consent is generally a laughable concept. But even here, consent for GDPR is being taken seriously!

GDPR Article 7 sums up the essential conditions for consent (to be valid). In a nutshell:

  • Consent needs to be freely given.
  • Consent needs to be specific, per purpose.
  • Consent needs to be informed.
  • Consent needs to be an unambiguous indication.
  • Consent is an act: it needs to be given by a statement or by a clear act.
  • Consent needs to be distinguishable from other matters.
  • The request for consent needs to be in clear and plain language, intelligible and easily accessible

Now read the above from a sexual intimacy perspective. Wouldn’t it be awesome if every individual in India got as much respect as data laws in the EU?!

A warped notion of Consent

You must have heard the song, ‘Na na karte pyaar tumhi se kar baithe…’ Sung by Mohd. Rafi, the song from the Hindi film Jab Jab Phool Khile, it expresses popular sentiment perfectly. In almost all the songs from the 70’s and 80’s, the heroine would be depicted as coy and very ‘proper’. She would have a change of heart only after many attempts made by her suitor. The moral – ‘Never give up’ because ‘sabr ka phal meetha hota hai’ (Sweet is the reward of patience). This kind of harassment has been our idea of ‘romance’!

‘No means no’ is not enough!

The Hindi film Pink made the following words resonate with every woman across the country: ‘No means no’. When Amitabh said, “’Na’ sirf ek shabd nahi, apne aap mein ek poora vakya hai (‘No’ is not just a word, but a full sentence in and of itself,)” India finally took cognisance. The film is credited with breaking down the idea of ‘consent’ to its simplest form for men to understand it better. The nation began discussing ‘consent’. Isn’t it just so, so sad that something as simple as ‘No means No’ had to be spelt out by the nation’s biggest film star in a movie for people to acknowledge the importance of consent? A good beginning maybe, but, ‘No means no’ is hardly enough!

We need to move towards an Affirmative model of Consent

The affirmative model of consent essentially relies on a positive agreement between the parties before sexual interaction can begin – in simple terms, a clear and unequivocal “yes”.  It is each of those conditions stated in the GDPR law for obtaining consent!

According to Californian Law, “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.

Then why should a woman have to SAY ‘NO’ or ‘STOP’ or ‘DON’T?!

If a woman’s body language screams ‘NO’…

If she looks uncomfortable;

If she seems scared;

If she puts her hand out;

If she tries to walk away;

If she tries to step back

…all of it means NO!

Some of you out there are thinking, this is too vague – how will we know for sure? Well, just ask the other person! At any time he/she looks uncomfortable – ask ‘Are you ok? Should we continue?’ If he/she says yes, then continue; else wait.

I have had an ‘intellectual’ conversation with a man on this topic and was told that it’s not practically possible to stop, once the ball is set rolling. If this were really the case, then I’m sorry most of the sex people are having is rape and not sex! This is where the sense of entitlement kicks in and just because you think it is right, doesn’t mean it is. Because whether or not a woman feels sexually violated, depends on her and not on the violator! Read this enlightening article on ‘7 Things That Can Be Rape, Even If You Were Taught To Think That They Can’t Be’ to know more.

Sometimes pop culture gets it right

Read this fantastic article on how pop-culture got it right when it came to consent. Using scenes from 5 movies – Steven Universe, Thelma and Louise, Frozen, The Philadelphia Story, and Buffy the Vampire Slayer, the article depicts how consent must be taken to make a physical experience enriching for both partners.

The following extract from the article delivers a potent message – please read it carefully:

“You may have noticed that in some of these examples, the encounter ends with no intimacy. No sex, no kiss. Being careful about consent sometimes means not having sex you might otherwise have had.”

Consent in case of Marriage is not important, even in the eyes of the law!

In our country, marital rape is not a criminal offence. The law discriminately protects minors (under the age of 18) from rape, but adults who are made to have sex by their spouses without their willing participation are free to continue to do so!

Stand-up comedian Daniel Fernandes delivers punch after punch in this hard-hitting video on Marital Rape.

[]

The starkest ‘jokes’ for me were towards the middle (4:34 to 5:01) –

“What is the difference between Marital Rape and Rape? There is no difference. In fact, I think, Marital Rape is worse. Because not only are you sexually violated, you have to wake up the next morning and make your rapist breakfast!”

It is about time that people realise that only ‘Yes is Yes’ – sure, in the case of data protection laws, but more importantly in the case of intimacy.

This article is a modified version of the one first published here.

Image is of Taapsee Pannu in the movie Pink mentioned above.

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Comments

3 Comments


  1. So with you on this one Ashwini and superb comparison! Yes if we are indeed protective of private data as we should be, then how come our bodies which are so much more private and integral part of us and our identity can be trivially violated?

    • Thanks Kanika. I was researching about GDPR for a project and was shocked to read the conditions for consent. It compelled me to write about it. The idea of consent in the personal space is alien to our culture. All of us need to be conscious and aware about it.

  2. The man will have to prove that she was a consenting party,” The Delhi High court observed #MaritalRape…VOW..great….BUT ..BUT..why dont they also tell how !..HOW should a husband keep and show proof of consent !..why dont the court..and womens group guide on this please..

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