[Laura Noakes | Deputy Editor]
Sexual consent isn’t black and white, it isn’t yes means yes and no means no. Consent is an infinitely complex concept and it is so important that everyone understands what constitutes meaningful, informed consent. As a law student, I studied the law on consent in detail when I wrote my dissertation – here are the facts you need to know to be clued up on consent law.
In the Sexual Offences Act 2003, consent is defined as ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’ This basically means that the person consenting must have the capacity to give consent – i.e they aren’t intoxicated to the point that they’ve lost capacity or suffer from some issue that means they don’t possess the capacity to consent in the first place. There must also be freedom to consent – there mustn’t be any coercion or threat of force, and the consent must be by choice. Sounds simple right? Well that’s not all there is to consent.
There are evidential and conclusive presumptions about consent under the Sexual Offences Act 2003. What this means is that if a defendant did one of the circumstances listed under either the evidential or conclusive presumptions, then they are presumed guilty of the sexual offence because no consent occurred. Whilst evidential presumptions can be rebutted, conclusive presumptions cannot.
What are evidential and conclusive presumptions?
Evidential presumptions include; violence or threat of violence to be used against the complainant or any other person, the complainant being unlawfully detained, the complainant being unconscious, the complainant being unable to communicate consent because of a physical disability, and finally the complainant being given a substance that overpowered them, without consent. If any of these circumstances exist, and there is no additional evidence that suggests consent, then the defendant is presumed guilty.
Conclusive presumptions include a defendant deceiving the complainant as to the nature or purpose of the act, and a defendant impersonating another in order to obtain consent. Whilst this scenarios seem far fetched, there have been cases where a complainant consented on the basis that she thought the act would improving her singing voice, and another where a defendant impersonated the complainant’s boyfriend in order to gain her consent.
Can a drunk person legally consent?
Finally, there are still some murky areas in consent law. Drunken consent is a particularly contentious topic; can a drunk person consent? When does a drunk person lose their capacity, and therefore, their ability to consent? The law, for now, seems to be a drunken consent is still consent, but there are many academic debates on if this legal stance needs to change.
During my studies, I have come to accept that consent is an extremely sensitive and complicated topic. However, it is also a very important topic, and one that we should all educate ourselves on because valid, informed consent is the key to healthy, functioning relationships.
If you’d like to know more about consent, check out our “Everything you need to know” guide!
— Trident Media (@TridentMediaUK) April 14, 2015