What is Consent: Understanding Consent and the Legal Implications

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. 

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. 

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. 

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. 

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

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.