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Consent matters



Views from the trench By Jayne Flores

Attention all sexually active males, young and old alike. I am focusing on males right now because according to the Guam Police Department’s Domestic Assault Response Team, 87 percent to 96 percent of criminal sexual conduct cases between 2017 and 2020 involved female victims.


Today’s lesson is about consent. Yes, consent. You need to get it from the woman before engaging in sexual activity with her. That’s right. You have to ask permission.


The U.S. Department of Health and Human Services’ Office on Women’s Health defines “consent” as “a clear ‘yes’ to sexual activity.”


The OWH website notes that, “Not saying ‘no’ does not mean you have given consent.” And that “sexual contact without consent is sexual assault or rape.”


The website also notes what sexual assault trainings teach all the time: that you cannot give legal consent to sexual activity or contact if you are a) threatened, forced, coerced, or manipulated into agreeing; b) not physically able to (you are drunk, high, drugged, passed out, or asleep); c) not mentally able to (due to illness or disability); or d) under the age of legal consent, which on Guam is 16. If the girl is 15, even if she says “yes” and consents to sex, it’s not legal, because she is only 15. She cannot legally consent. Period.


I bring all of this up because Guam law currently contains a loophole with regard to sexual consent. We tell people all the time that you cannot give consent if you are drunk or drugged.


But according to Bill 243-36, introduced in January by Sen. Mary Torres, Guam law currently states that you have to be “clandestinely or forcefully” administered an intoxicant in order to be considered mentally incapacitated.


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This means if you get drunk yourself, or you take drugs yourself, Guam law does not consider you “mentally incapacitated,” regardless of your ability to understand any sexual act that may follow your “voluntary” incapacitation.


Bill 243 closes this dangerous loophole by redefining the definition of mental incapacitation to include being under the influence of a substance or substances of your own volition.


Bill 243 also addresses “consent,” noting that it means “words or overt actions…indicating a freely given present agreement to perform a particular sexual act with the actor (the other party).” It notes that consent doesn’t mean the existence of a prior or current social relationship between two people, or that the victim failed to resist a particular sexual act.


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In plain terms, guys, it means that just because your partner said yes to sex once before, or even a dozen times before, it doesn’t mean “yes” every time.


Consent is not a one-time thing. Giving past consent doesn’t mean that consent applies now or in the future. If she has a headache, or for whatever reason is not in the mood, you need to cool your jets.


If she consents to kissing, or to your hands roving all over her body, that does not mean she is consenting to sexual intercourse. You still need to ask.


This issue surfaced after the Minnesota Supreme Court overturned a felony rape conviction because the victim was intoxicated by her own will during the alleged assault. And because a former Guam prosecutor was admonished by a judge last year for trying to say that a drunk female victim was mentally incapacitated because she got drunk, and was therefore unable to consent to sex.


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The judge warned that the alleged victim’s voluntary consumption did not meet Guam’s legal definition of “mentally incapacitated.”


So, we definitely need to slam shut this loophole. We also shouldn’t need a law to educate males with regard to consent. It should be common sense and a matter of respecting your partner - whatever their gender.


But since we have so many sexual assaults on our island, we need to tell people (mainly males): No, it is not ok to just engage in sex with someone if they are really drunk.


And always ask first.


Jayne Flores is the director of the Bureau of Women’s Affairs. Send feedback to jayneflores59@gmail.com.



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