What is implied consent in the UK?

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Nick Titchener

Managing Partner


What is sexual consent in UK law?

To provide sexual consent is to permit one to engage in a sexual act with a partner. It is mandatory to gain consent from a partner before engaging in sexual activity, as failure to do so can result in committing the offence of sexual assault or even rape.

Consent must be given freely, by each partner and before every sexual act or encounter. The Sexual Offences Act 2003 states that for someone to consent to a sexual act he or she must ‘….agree by choice….(with)….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. If they are threatened, coerced, or bullied into sexual activity as a result of fear, they lack the capacity to consent freely.

An individual is unable to provide their consent if they are:

  1. Under the legal age of consent  – anyone under the age of 16 does not have the legal capacity to consent to sexual activity of any kind
  2. If they are unconscious
  3. If they are asleep
  4. If they are being held against their will

It is an offence under the Sexual Offences Act 2003 to cause or encourage someone to engage in any sexual activity without their consent.

Verbal consent – also known as express consent – is the clearest form of consent, yet implied consent is also permissible, providing you can prove you reasonably believe consent was given for the sexual act to take place.

What is implied consent in UK law?

Implied consent can be described as a situation where someone does not speak or act in a way that is seen as giving permission, but permission is still understood to exist as a result of a lack of protest, denial or refusal. Implied consent relies upon non-verbal signals, but these are ambiguous and open to misinterpretation, so you should always be sure that  consent from a partner has been given before engaging in any sexual activity.

Examples of implied consent

It can be difficult to understand what implied consent looks like, and as a result, it can often be misunderstood. In law, indecent consent is usually referred to by the defendant, who claims that by not explicitly objecting, the victim has given consent.

Implied consent can often be presumed in situations where: 

  • Someone does not explicitly speak out about the event
  • Someone does not object to the event or the potential event
  • Someone does not leave if they have the opportunity to do so 
  • Someone does not ask questions to fully understand the situation or to clarify what is about to happen
  • Someone does not ask for help from others if they feel threatened

It’s important to note that implied consent as a form of defence does not apply if the situation involves sexual assault, and/or caused serious bodily harm to the victim.

The Sexual Offences Act 2003 and sexual consent

The Sexual Offences Act 2003 classifies a number of sexual offences under UK law, including:

  1. Rape – penetrating the mouth, vagina or anus of another without their consent
  2. Sexual assault – to deliberately touch another person in a sexual manner without their prior consent
  3. Assault by penetration – to penetrate the vagina or anus of another without their consent, using either a body part or another object
  4. Inciting sexual activity without consent – to cause or encourage someone to engage in a sexual act without their consent

Who can give implied consent?

Silence is not implied consent, nor is it a lack of a physical rejection. If someone feels afraid or threatened they may be quiet or still, suggesting they do not have the capacity or freedom to consent to sexual activity.

If someone is under the influence of alcohol or drugs, they may be unable to control their movement or speech. If someone is so intoxicated, they may not be able to consent to sex, so engaging in sexual activity with them could be an offence.

Implied consent cannot be assumed based upon:

  1. The clothes you are wearing
  2. If you are under the influence of alcohol
  3. If you are under the influence of drugs
  4. If you have kissed someone
  5. If you have had sex with someone before

Can implied consent be revoked?

Sexual consent – whether implied or express – 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 someone loses their capacity to object during a sexual encounter – such as if they pass out or fall asleep – their consent is revoked, so you must stop.

If an individual has consented to a sexual encounter or a specific sexual activity in the past, this does not mean they have provided indefinite consent – they can refuse to consent to a specific sexual activity at any time in the future. They may also consent to one kind of sexual activity but refuse another, for example consenting to sex with a condom but refusing to have sex without using one.  

If you are unsure if consent has been provided, you should check with your partner. If you are unsure if the person is unable to consent, for example if they are under the influence of alcohol, you should not assume they consent and you should not engage in sexual activity with them until they are freely able to consent.

Can implied consent have an impact on other sexual offence charges?

If a sexual partner consents to one sexual activity, this does not automatically mean they consent to other sexual acts. For example, they may consent to oral sex but not penetrative sex. If you disregard their lack of consent and proceed with the act, you are committing a sexual offence.

Always ensure or satisfy yourself that your partner consents to every sexual encounter or act prior to engaging in sexual activity.

What are the consequences of not acquiring sexual consent?

If you fail to obtain consent from a partner before engaging in a sexual act and you are accused of committing a sexual offence in contravention of the Sexual Offences Act 2003, the penalty and sentence will depend upon the nature and severity of the offence:

  1. Rape – a maximum penalty of life imprisonment
  2. Sexual assault – a maximum sentence of ten years in prison
  3. Assault by penetration – an indeterminate prison sentence, which will be decided based on the specific circumstances of the case
  4. Inciting sexual activity without consent – the sentence will depend on the nature of the assault – whether penetration was involved or not. If penetration took place, the offence will be treated as rape, with a maximum sentence of life in prison. If penetration did not take place, the offence will be treated as sexual assault, with a maximum of ten years in prison

For specialist legal advice get in touch with our team of sexual offence solicitors. At Lawtons we have considerable experience in defending cases involving sexual offences.

We will work with you to ensure the best possible outcome for you, whilst aiming to minimise the impact on your personal life and your reputation.

Call us on 0333 577 0522 to discuss your individual circumstances with our solicitors.

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