Consent in Sexual Assault Cases

What does the law say?

The modern law on consent in sexual offences is mainly found in the Sexual Offences Act 2003. The Act introduced a clearer statutory definition of consent, replacing much of the uncertainty that existed under the previous law.

Did the complainant consent?

Section 74 of the Sexual Offences Act 2003 provides that a person consents if they agree by choice and have the freedom and capacity to make that choice. This definition contains three important ideas: agreement, freedom and capacity.

Agreement

Agreement means that the person must genuinely agree to the sexual activity. Consent is not the same thing as simply submitting or not physically resisting. A person may freeze, become passive, or fail to communicate clearly, and the absence of resistance does not automatically mean that consent was given. The courts have recognised that the dividing line between consent and submission is ultimately a matter for the jury to decide.

Freedom

Freedom means that the decision must be voluntary. A person who submits to sexual activity because of threats, manipulation, lies, etc is likely to be judged not to have agreed freely. Thus, any consent given will be invalid so far as the law is concerned.

Capacity

Capacity refers to whether the person was able to make the decision at all. This is particularly important where alcohol and drugs are involved. Capacity will also be an issue if the complainant suffers some mental health challenge that leaves them unable to consent – that challenge could be permanent or temporary. A person who lacks the capacity to make a decision cannot provide valid consent.

The law also recognises that consent can change. Someone who initially agrees to sexual activity can withdraw that consent at any point. Continuing sexual activity after consent has been withdrawn may therefore amount to a criminal offence.

Reasonable belief in consent

For most sexual offences, including rape and sexual assault, the prosecution must prove not only that the complainant did not consent but also that the defendant did not reasonably believe that the complainant consented.

This does not mean that a defendant’s belief must have been correct. The law recognises that people may genuinely misunderstand situations. However, the belief must be reasonable, taking into account all the circumstances.

The question for a jury is therefore not simply: “Did the defendant say they thought there was consent?” The question is whether that belief was a reasonable one based on the evidence.

The Sexual Offences Act 2003 specifically requires the court to consider any steps taken by the defendant to establish whether the complainant was consenting. In some circumstances, evidence about what the defendant did or failed to do may be highly relevant when assessing whether their belief was reasonable.

Consent and intoxication

Alcohol and drugs are frequently raised in sexual offence cases. Simply being drunk does not mean that someone cannot consent, but there comes a point where a person is too drunk to properly understand what is happening and thus they are too drunk to decide whether to consent or not. Once they are so drunk they cannot stay awake then there is no prospect of them being able to consent to any sexual activity.

The courts have repeatedly emphasised that whether intoxication affects a person’s ability to consent is fact specific. A person who has consumed alcohol may still have capacity in some circumstances, while in others they may be unable to understand or participate in what is happening.

Deception and consent

Consent obtained through deception can raise difficult legal questions. Not every lie or omission will necessarily remove consent, but where the deception goes to the nature of the sexual act or fundamentally changes the circumstances, the law may treat the apparent consent as invalid.

This is not a new concept to the law. The courts have recognised that consent can be affected by fraud or deception for over 100 years. In the case of R v Williams, the defendant was giving singing lessons to a young woman. He told her that engaging in a sexual activity with him would improve her singing. The courts held that the young woman had not consented because Mr Williams had lied to her about the nature of the act. Williams was decided in 1923 but even then it was not new law; the court in Williams applied a previous decision about fraud vitiating consent from 1877.

How might the law develop in the future?

Consent law continues to evolve. Parliament introduced the statutory definition in an attempt to provide greater clarity, but difficult cases continue to reach the courts.

There has been debate for some time about the role of alcohol in sexual encounters and particularly whether the current position that ‘drunken consent is still consent’ should be replaced with a model that assumes there is no consent unless shown otherwise. Effectively, this would reverse the burden of proof to require defendants to prove that the complainant did consent to sex and was capable of doing so. That would be resisted strongly by the legal profession but society certainly seems to be moving in a more Puritanical direction overall so it is not impossible that this will happen in the coming years.

Another continuing debate is how far the criminal law should go in addressing situations where the defendant believes he had consent, but the complainant was not consenting. The challenge for the law is balancing two important principles: protecting people from non-consensual sexual activity while ensuring that criminal liability is imposed only on people who are guilty of crimes.

Future developments may come from both Parliament and judicial decisions. Courts continue to interpret the meaning of freedom, capacity and reasonable belief in light of changing social expectations and new factual situations.

Evidence that may be important

Cases involving consent often depend heavily on the surrounding circumstances. There is rarely a single piece of evidence that determines the outcome.

Relevant evidence will include things such as messages between the parties, witness accounts, phone records, CCTV, medical evidence, evidence about intoxication, and the behaviour of both people before and after the alleged incident.

The context of the relationship between the parties may also be relevant. A previous relationship or previous sexual activity does not amount to consent on a particular occasion, but it may form part of the background that the jury considers. This will be a controversial area in most trials and the defendant will need to make a formal application to the court for permission to rely on this sort of evidence.

How Chetwode Criminal Defence can help

Allegations involving consent are often among the most challenging cases to defend. The evidence can be highly personal, the issues can be complicated, and the consequences of a conviction can be extremely serious.

At Chetwode Criminal Defence, we understand the importance of carefully examining the evidence, identifying the legal issues, and ensuring that the prosecution is required to prove every part of the offence.

Our criminal defence team can advise you from the earliest stages of an investigation through to trial, providing clear advice and strong representation throughout the process.

FAQs

Does someone have to say “no” for there to be no consent?
No. Consent is about whether someone freely chose to participate. A lack of verbal refusal or physical resistance does not necessarily mean consent was present.

Can someone withdraw consent after sexual activity has started?
Yes. Consent must continue throughout sexual activity and can be withdrawn at any time.

If both people were drunk, does that mean there was no consent?
Not necessarily. The issue is whether the person had the capacity and freedom to choose. Intoxication is considered in the circumstances of each case.

Can a genuine belief in consent be a defence?
Yes, but the belief must be reasonable. The jury will consider all the circumstances when deciding this.