The law relating to consent in sexual offences is set out in sections 74 – 76 Sexual Offences Act 2003. Proof relating to consent is often the crucial element in such a case. Offences such as rape, assault by penetration and sexual assault require that the Prosecution prove that the complainant did not consent and that the defendant did not reasonably believe in that consent.
A person gives consent for these purposes if s/he agrees by choice, and has the capacity and freedom to make that choice. A child aged under 13 years cannot in law consent to sexual activity.
If the Prosecution can prove that the defendant committed the act in question and either intentionally deceived the complainant as to the nature or purpose of the relevant act or intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant, then as a matter of law it is to be conclusively presumed that the complainant did not consent and the defendant did not reasonably believe in that consent.
If it is proved that the defendant did the relevant act and knew of the existence of certain circumstances, then it is presumed that there was no consent and no reasonable belief in that consent unless the defendant can prove otherwise. Those circumstances include the use or threat of violence, the unlawful detention of the complainant and if the complainant was either asleep or unconscious at the time.
Some offences necessarily adopt a different approach to the issue of consent. For example, a person (A) aged 18 or over commits an offence if they intentionally touch another person (B) sexually and either B is under 16 and A does not reasonably believe that B is 16 or over or if B is under 13.
Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.