The
history of rape and sexual assault dates as far back as the creation of man. Originally,
rape was thought to be, and defined as, a crime committed solely against women but
rape of males is now commonly criminalized and has been subject to more
discussion than in the past. Anti-rape activists have initiated movements
seeking to combat violence against and the abuse of women to give women a sense
of security. Unfortunately, what has now become common is some women, driven
by revenge and self-interest or based on false memories, make spurious
allegations of rape. It is no surprise that people in today’s world would
rather sign a consent form before engaging in sexual activity than not, in an
attempt to protect themselves from groundless accusations that could ruin their
reputations.

The
scandalous Kobe Bryant sexual assault case of 2003 began when the media
reported that the sheriff’s office in Eagle, Colorado, had arrested professional
basketball player Kobe Bryant in connection with an investigation of a sexual
assault complaint filed by a 19-year-old hotel employee. The lady accused
Bryant of raping her in his hotel room in early July. She filed a police report
and authorities questioned Bryant about bruising on the accuser’s neck. Bryant
admitted to a sexual encounter with his accuser but insisted the sex was
consensual. The case was dropped after Bryant’s accuser refused to testify in
the case (1).
We do not and may never know if indeed it was consensual sex. Also, notable is
the Rosewood massacre of 1923 which was founded on a white woman’s false
accusation of rape against a black man (2).
The Rosewood massacre was an ugly situation as many deaths were recorded. As
the saying goes, experience is the best teacher. Even if such experience was
another’s.

With
the constant people coming out against celebrities for sexual molestation,
harassment, rape charges, celebrities, athletes and high-powered business
executives who want protection from potential rape or other sexual charges are
obtaining consent forms for their partners to sign, acknowledging the pair is
about to engage in consensual sex (3). These forms are
however not solely for the celebrities or the high-ups.

The
Sexual Consent Form is an agreement that allows two (or more) adults create
boundaries and share permissions to create an atmosphere that is comfortable
among parties. The agreement is a more communicative, more comprehensive, more
explicit and clearer model of sexual consent than the “no means no”
or “yes means yes” approach. Succinctly, the sexual consent form is
an evidence of consent. Individuals who want to engage in acts that may involve
sexual intercourse, or other related activities may want to sign an agreement
in that regard. The parties can decide which sexual acts they wish to perform
ahead of time, allowing for a mutually enjoyable and safe sexual environment.
Since it is probable that things may get heated or escalate, the ‘Ratchet
Clause’ offers options for participants to add sexual activities to the
existing list by entering them into the consent form or agreeing to them
verbally. The sexual consent form includes an ‘Accidental Violation’ section
allows the parties decide whether it would be treated as an accident or as an
assault should there be a violation of the agreement without fault or intent.
Furthermore, the ‘Failure to Perform’ section recognizes the possibility of an
inability to perform the activities listed on the form and does not consider
this a violation of the agreement. Essentially, the sexual consent form is
consent made easy, nearly perfect.

One
may call this agreement a contract seeing as it satisfies the requirements or
the basic elements of a contract as stated in Bilante International Ltd. v.
NDIC [2011] 15NWLR (Pt. 1270) 407, which includes offer,
acceptance, consideration, capacity to contract and intention to create legal
relation. However, such document will hold no legal weight as a contract in
court for the primary reason that enforcing such an agreement will be contrary
to public policy, public morality and may cause legal difficulties. It is
necessary to clarify that the sexual consent form is not a contract in the
strict sense but may be good enough as proof of consensual sexual relations
between the parties.

There
have been concerns that this seemingly simple fashion of establishing consent
poses more menace than it genuinely attempts to solve. Professor Felicity Gerry
QC, a specialist in sexual offences, says that if someone signed a consent form
but was later forced to have sex, the document could undermine a rape complaint
(4).
People may even be coerced into signing an agreement. Felicity Gerry opined
that reducing Rape, a serious crime, to a civil matter or a breach of contract
is wrong and should not be endorsed. Like any formal agreement, the sexual
consent form can be abused or used as an instrument to commit crime.

 People want a safe and secure environment for
interpersonal relationships. Considering the possibility sexual consent to
create chaos, the easier way to alleviate false rape allegations would require
that laws are enacted to prosecute any person who makes false rape allegations.
In the United Kingdom, Individuals suspected of making a false allegation of
rape may be charged with the civil crime of “wasting police time” or
the criminal charge of “Perverting the Course of Justice”. Over a
five-year period ending in 2014, a total of 109 women in the United Kingdom
have been prosecuted for crimes related to making false accusations of rape (5). However, this also
does not come without its downsides (6).

Conclusively,
sex contracts have been introduced to help the conversation surrounding consent,
to avoid misunderstandings, and to create a more pro-active approach to
ensuring that sexual partners are willing participants. The sexual consent
form, disguised as a ‘knight in shining armour’, has demerits which overwhelm
its benefits and while the intentions may be pure, it is an overly-simplistic
and potentially harmful solution.

References

1. Johnston, Lauren. Bryant
statements to police at heart of hearing. CNN. February 2, 2004.

2. Bentley, Rosalind. The Rosewood Massacre: How a lie destroyed
a black town. February 17, 2017.

3. Thomas Heath, Steve Wyche. Pre-Sexual Consent Forms For Wary
Athletes.

4. Goldhill, Olivia. Sexual consent contracts’ are now a thing.
Would you sign? July 15, 2015.

5. Laville, Sandra. 109 women prosecuted for false rape claims in
five years, say campaigners. December 1, 2014.

6. Gibson, Megan. The Problem With Prosecuting Women for False
Rape Allegations. December 3, 2014.