What is consent in law?

This is a general guide to the law and does not constitute legal advice.

In civil law, making a contract for instance, consent means agreement to the same thing. In criminal law, it means something more akin to permission. Both seek to include notions of use and abuse of power within them. Determining ‘consent’ is one of the most complex areas of the criminal law in regard to sexual offences. There are three main reasons for this.

First, it is very difficult to know what is going on in the mind of another person. Is flirting a signal that sexual intercourse is ok now or just an invitation to start dating with the possibility of intercourse at a later time? Is it a social norm or wise for men to be more dominant in ‘encouraging’ women to engage with them sexually and the women to be more submissive and comply? Internet pornography certainly promotes this view of sexual relations.

Second, sexual acts are usually performed in private without witnesses. That means if there is a dispute as to what happened, a jury has basically to choose the story of one person over the other. They usually have to infer from evidence of what happened in the lead up to the incident as to what might have been in the mind of the parties. How they were behaving at a party or in a pub or the nature of their previous relationship if any might apply. If the relationship has been conducted over the internet that can be harder to prove.

Third, because of the distress that can result from a sexual assault, the complainer’s recollection of facts and the comments or statements made shortly thereafter can vary. This can make it difficult for others to know what really happened.

Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person’s actions and the facts and circumstances of a particular situation (or in some cases, by a person’s silence or inaction). In the past, a couple who married were deemed to have given “implied consent” to have sex with each other, a doctrine which barred prosecution of a spouse for rape. This doctrine is now considered obsolete in most countries.

The Sexual Offences Act in England and Wales in 2003, and the Sexual Offences Act in Scotland in 2009, set out what consent means for the purposes of prosecution under the criminal law.

The legislation has extended the traditional definition of rape to make it an offence of for “person (A) to penetrate with his penis the vagina, [but also now the] anus or mouth of another person (B), either intentionally or recklessly, without that person’s consent, and without any reasonable belief that B consents.”

Under the Scottish legislation, “consent means free agreement.”

“59. Subsection (2)(a) provides that there is no free agreement where the conduct takes place at a time where the complainer is incapable, because of the effect of alcohol or any other substance, of consenting to it. The effect of this subsection is not to provide that a person cannot consent to sexual activity after consuming any alcohol or taking any intoxicating substance. A person may have consumed alcohol (or any other intoxicating substance), and may even be quite drunk, without having lost the capacity to consent. However at the point where he or she is so intoxicated as to lose the capacity to choose whether to participate in sexual activity, any sexual activity that takes place, does so without the complainer’s consent.”

The challenge for adolescents is that the emotional part of the brain is accelerating them towards sexual thrills and experimentation, while the rational part of the brain that helps with self control and puts the brakes on risky behaviour, has not fully developed. This is made all the more difficult when alcohol or drugs are in the mix.

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