Consent and the Law
I get asked about this a lot so here is a guide to consent and the law (in the UK, although it will be similar elsewhere too). Take care reading this if you are a survivor of a sexual assault because I talk about the technical aspects of sexual offences in a little bit of detail. It’s good to know about the law, but if you are worried about the legal consequences of what you’ve been doing, you probably should learn to get better at consent already. Check out all my posts about consent
When having any kind of sex with someone, both people must consent to it happening, otherwise it is a sexual offence. “A person consents if [they] agree by choice, and has the freedom and capacity to make that choice.” There are two bits to this: agreement, and choice.
Agreement sounds pretty straight-forward – ‘would you like to do ___?’ ‘yes I would’ ‘no I wouldn’t’. However when it comes to sex people often don’t seek agreement in this way, which makes this a bit more complicated. In fact it’s not just sex; research shows that for any social activity people often don’t say the words ‘yes’ or ‘no’.
We can’t just wait for someone to say ‘no’.
So we can’t just wait for someone to say ‘no’. You have to be really aware of what’s going on for the other person. During non-consensual sex people often don’t say ‘no’ resist or fight back at the time. It’s also common for people to freeze up, or go passive, or to try to befriend the person assaulting them. This is because they are in a vulnerable situation and might be very scared. So how do we know if someone is agreeing?
What Does Agreement Look Like?
In a criminal investigation the accused (person accused of an assault) will be asked about what steps they took to make sure that the other person was consenting. So for example, did they pause at any time to ask them if everything is okay, what was their body language, did they have any discussions about what kind of sex they might both like. Think about agreement when it comes to non-sex things: how do we know someone is agreeing? How do we know that something is mutual? Read this about how to practice learning consent from handshakes.
If the accused can show that they took steps to make sure sex was consensual and that they reasonably believed they had consent then this may be a legal defence. But the point here is that it’s on you (that means all of us) to make sure that the other person is into whatever it is that we are doing together.
People can only agree to something if they are able to choose to agree. If a bank robber holds a gun at the cashier and says ‘hand over the money,’ we can’t say that they are agreeing to hand over the money. They have no choice.
People are not able to choose to agree if: they are asleep; very drunk or high; or don’t have any understanding about what is going on. For example, if there was evidence that the complainant (the person making the complaint, also known as the victim or more properly, survivor) was very drunk, from: witnesses (e.g. taxi driver, friends, bar staff); or CCTV footage; or a report from a doctor, then a court can rule that it was not possible for them to consent (no matter what the accused says).
The prosecution will also look for whether the complainant was free to choose. So, If there was any violence or threat of violence; if the victim was dependant on the accused; or, if the accused had power over the victim; or if there was a big age gap; then the court may rule that there could not have been agreement by choice. See also if someone was tricked into sex (either about who or what it will involve). For example someone might agree to sex with a condom but if that person took the condom off it would be rape or an assault (this is known as stealthing).
The law has been written to try to cover any non-consensual sexual activity so there are a lot of sexual offences: for more see the Sexual Offences Act 2003.
There is: rape (penetration of mouth, vagina or anus with the penis); assault by penetration (with fingers or objects); sexual assault (any sexual touching at all), causing someone to have sex (for example making someone have sex with that person or forcing them to masturbate). These all serious crimes and (depending on the circumstances) can result in long prison sentences. Read more about other sexual offences at my sex and the law article.
Although people of any gender can commit a sexual offence it is far more common that women are victims, or survivors, of sexual assault than men. One in ten women have had sex against their will, compared with one in seventy one men. In most cases the accused and the victim know each other, so non-consensual sex can and does happen in relationships too.
Those affected can report it to the Police, or a sexual assault referral centre (who don’t have to report to the Police). More at rapecrisis.org.uk
Being drunk is not a defence to a sexual offence. So saying ‘I was drunk, I didn’t know what I was doing’ is not going to get them off. If someone was drunk then they are going to find it difficult to show that they did understand, or reasonably believe, that the other person was consenting. So in fact, not only is being drunk not a defence, it may also help the prosecution case. And in case you are wondering what happens if you have both been drinking I’ve answered that here is it consensual if we were both drunk?
Also if one person was trying to get the other person drunk (or more drunk than them), or one person was buying the other person drinks, this gives the prosecution more evidence that an offence may have been committed. Sometimes people are targeted specifically because they are drunk or someone tries to get them drunk to make it easier to attack them.
The law and prosecution guidelines specifically addresses this: if someone was drunk they were not ‘asking for it’ but actually more vulnerable and so more protected under the law. Here is a guide from the CPS about this.
@ Justin Hancock, 2018
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