What is Consent: Understanding Consent and the Legal Implications
What is consent? - Understanding Consent and the Legal Implications
Consent is what separates legal sexual activity from sexual assault
(unwanted touching of a sexual nature) or
rape (unwanted sexual activity involving penetration). Consent is a key ingredient in the most serious sexual offences; rape,
sexual assault by penetration
and sexual assault. The prosecution must make a jury 'sure' that consent was not given, or that the accused did not reasonably believe in consent.
It is a defence for the accused if the complainant consented to the sexual activity and this can be proven, or if the accused had a reasonable belief that consent was given. The concept of “reasonable belief in consent” is a key aspect for the prosecution to disprove.
The legal definition of consent is provided for by section 74 of the Sexual Offences Act 2003
– a person consents if they agree to the particular sexual activity by choice, and they have the freedom and capacity to make that choice. If someone has verbally agreed to participate in a sexual act yet they lack the freedom or capacity to do so, they have not truly – or freely – consented.
A complainant can present evidence of lack of consent if, at the time of the alleged non-consensual sexual activity, they were:
- Too young to consent – the age of consent in England and Wales being 16 years old
- Emotionally manipulated or physically forced into submitting through exploitation or violence
- Asleep or otherwise unconscious and therefore unaware of what was happening
- Intoxicated due to the consumption of alcohol or drugs (including ‘spiked’ drinks)
- Suffering from a mental illness, personality disorder, or learning disability that limited their understanding of the situation or ability to communicate
It does not matter whether the accused person and their accuser knew each other. had previously engaged in consensual sexual activity together, or if the accuser consented to another type of sexual conduct with the accused on a separate occasion. On each occasion consent must be given or be reasonably believed to have been given.
How Can Consent be Given
Consent can be given verbally (expressed consent) or through physical conduct (implied consent), which can make reading situations complicated. An accused person’s thoughts about what was happening and how consent was being given are very
relevant considerations, as they may have had ‘reasonable belief’ that the complainant gave consent, but they can find themselves accused of a sexual offence due to their misinterpretation of that. As your lawyers we would spend the time to discuss the circumstances with you, your thought process and the relationship background. If consent was reasonably believed it is important this defence is strongly prepared and logically presented to the jury or to the Crown Prosecution Service by way of
pre-charge representations
if you have not yet been charged with an offence.
How Can Consent be Proved
The test for consent is partially subjective and partially objective. It asks firstly whether the defendant genuinely believed in the consent of the other party. The test then asks, if so, was the belief in consent reasonable? This second part is the objective test, taking into account all the circumstances of the case, and is for the jury to decide.
The prosecution must prove that the defendant did not have a reasonable belief in consent and make the jury ‘sure’ of this.
A defendant does not need to prove anything during a criminal case, it is for the prosecution to prove the offence. However, where the defendant can, it is crucial that they provide their lawyers with any supporting evidence they have to show that consent was given, this may be in the form of text messages, social media messages or conduct of the complainant after the alleged offence is to have occurred.
Can Consent be Withdrawn During Sexual Intercourse?
Sexual consent – whether implied or expressed – can be revoked at any time during a sexual encounter, even if consent was previously given. If you don’t stop engaging in sexual activity when asked to do so, from that point onwards you are committing a sexual offence. If a person becomes incapable of consenting during intercourse then consent is no longer being given and to continue would be a criminal offence, for example; where a person is sleeping, or they become unconscious.
It would also be an offence to engage in sexual activity in a way that goes against what the other person consented to. An example of this is the use of a condom, if an agreement to intercourse on the basis that a condom is worn has been made, and then intercourse takes place with no condom this is an offence of rape.
How to defend a false allegations where consent is the issue
Our lawyers have over 15 years experience defending individuals accused of serious sexual offences. Working with our client and listening to their circumstances, background and relationship with the complainant is key when preparing their defence. Key considerations to have when accused of a sexual offence are detailed in our blog: https://www.eventumlegal.co.uk/defending-a-false-rape-allegation
How We Can Help
Obtaining legal advice is essential, sexual offence convictions can carry not only lengthy terms of imprisonment if convicted, but also carry a stigma from just being accused and investigated.
It is crucial in cases of false sexual allegations that fast pro active action is taken to avoid evidence such as texts, phone record logs and social media posts being destroyed. Presenting a defence early with supporting evidence can be crucial and can result in you not even being charged with an offence. Approaching the case early with a strong defence can also lead the police to investigating lines of enquiry they may not have had they not been raised by the defence.
We act for clients both at the
pre-charge stage
of a case (before charges) and post charge
(after a client is charged). Our aim is to successfully defend our clients, to prevent charges and convictions.
Our lawyers have a thorough understanding of the law surrounding sexual offences and issues arising with consent. Our initial advice is free and we will spend the time to go through your circumstances with you in detail so that you can make an informed decision regarding the defence of your case. You can contact us
by phone 0161 706 0602 or via our contact us page, we will call you back at your convenience.
We Can Help With
Has your case been listed for pre-trial review? Are you concerned about what the hearing may entail? Our team have put together this short fact sheet which provides some guidance as to why a pre-trial review may be listed and what happens in the courtroom. Pre-trial reviews are not always necessary, however in cases which may have complex issues, be anticipated to be lengthy trials, or issue have arisen during trial preparation between the parties, then a pre-trial review is likely to be required. What is a Pre Trial Review? A pre-trial review is exactly what the name suggests, it is an opportunity for the court review the case prior to trial. The judge will ensure that both parties have met previous directions set by the court, and that there is no outstanding issues or reasons which may cause a delay to the trial. If there are any issues that have arisen between the parties they will be aired and the judge, where required, may set directions to the prosecution and defence with the aim being to resolve the problems, and to enable trial to begin and run effectively. Issues that can arise during trial preparation may include: 1. Applications to introduce bad character , this can be of the defendant or any other trial witnesses. 2. Applications to introduce hearsay evidence 3. Problems with witnesses 4. Delays caused by either part, where material should have been served and hasn't. 5. Applications for disclosure of documents which the defence may need and they are being withheld. Do I need to attend my pre-trial review? Yes, the defendant in a case is almost always required to attend their pre-trial review. It can also be useful for the defendant's attendance so that they can remain fully involved and aware of the process and decisions being taken in their case. You will not be asked any questions at the hearing but the judge may wish for you to acknowledge the outcome of the hearing and directions set, particularly if there is work for the defence team to carry out. Will my barrister attend my pre-trial review? You must always be represented at any court hearing. Our team take great pride in our meticulous preparation for all court hearings and your barrister would be instructed to attend your pre-trial review, with a detailed brief which would detail any issues we have with the prosecution or delays that are affecting our ability to prepare for trial. Do my witnesses have to attend my pre-trial review? No, your witnesses do not have to attend your pre-trial review. No evidence will be heard during the hearing, it is to establish readiness for trial only, resolve issues that could potentially cause delays, and to give the court confirmation that the current date listed for trial will be able to remain. How long does a pre-trial review hearing take? How long a pre-trial review hearing takes depends on the nature of the case and whether any issues require addressing by the judge. The court will usually want to process pre-trial review hearings quickly, and in sexual offence or domestic abuse cases the hearings can last anywhere from 10 minutes to one hour. How Eventum Legal can help Our team take a meticulous approach to trial preparation and will always be alert to any issues that could affect your case. We take a no stone unturned approach and we are not afraid to challenge decision of the CPS at hearings before the courts. We have select barristers which we work regularly with when defending sexual and domestic violence cases so you are provided with a strong and experienced team who are dedicated thorough preparation and presentation of your case. If you have a pre-trial review hearing approaching and are unrepresented, or feel that your current legal team are not making the progress required then contact us for a free initial consultation where we will assess your case, circumstances and the future of any court hearings.
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