What is sexual consent in UK law?
Definition: Sexual consent is when an individual, who has the legal capacity to do so, voluntarily agrees to engage in sexual activity with a partner.
It is mandatory to obtain consent from a partner before engaging in sexual activity. Failure to do so can result in committing an offence of sexual assault or rape.
The Sexual Offences Act 2003 states that for someone to consent to a sexual act, they must ‘agree by choice…(with)…the freedom and capacity to make that choice.’
When is sexual consent not valid?
If a person has not freely consented, for example if they have been threatened, coerced or bullied into sexual activity as a result of fear, then any verbal agreement to participate in sexual activity is not valid.
An individual is unable to provide their consent if they:
- Are 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.
- If they are unconscious.
- If they are asleep.
- 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.
How do I know if I have received consent?
Verbal consent, also known as express consent, is the clearest form of consent. However, implied consent is also permissible, providing it can be proved that you reasonably believe consent was given for the sexual act to take place.
Acquittals in allegations of sexual assault can often be based on whether it can be proved that there was reasonable belief that the individual gave consent.
What is implied consent in UK law?
Implied consent is when permission is understood to exist even when not given verbally or through actions. This may be as a result of a lack of protest, denial or refusal.
As implied consent relies wholly on non-verbal signals, it can be ambiguous and open to misinterpretation. To avoid any issues, you should always be sure than consent from a partner has been clearly given before any sexual activity.
What are examples of implied 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.
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 which suggests 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:
- The clothes you are wearing
- If you are under the influence of alcohol
- If you are under the influence of drugs
- If you have kissed someone
- 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 and 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.
What are the consequences of not acquiring sexual consent?
If you fail to obtain consent from a partner before engaging in a sexual act, you may be accused and charged with a sexual offence. The penalty and sentence will depend on the nature and severity of the offence:
- Rape – maximum penalty of life imprisonment, with sentencing ranging between 4 – 19 years’ custody.
- Sexual assault – a maximum sentence of ten years in prison, with sentencing ranging from a medium-level community order to 7 years’ custody.
- Sexual assault by penetration – a maximum sentence of life imprisonment, with sentencing ranging from a high-level community order to 19 years’ custody.
- Inciting sexual activity without consent – if penetration was involved, the maximum sentence is life imprisonment, with the sentencing ranging from a community order to 19 year’s custody. If no penetration was involved, the maximum sentence is 10 years’ prison, with sentencing ranging up to 7 years’ prison.
All guidelines and information provided by the Sentencing Council.
Contact Lawtons Solicitors for Legal Guidance
We understand how scary it can be to be faced with an accusation of sexual assault. At Lawtons, we boast over 200 years of collective experience in criminal defence, with a particular specialism in defending serious sexual offences.
At a time that is highly stressful, we are there to listen to you, support and guide you. Any form of sexual offence is highly sensitive and we take the utmost care when dealing with your case.
For specialist legal advice, be sure to get in touch with our team of sexual offence solicitors to protect your future.
