Consent

Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration. Can be either expressed or implied.

WHAT IS THE DEFINITION OF CONSENT?

Under the Sexual Offences Act 2003 has three important provisions relating to consent. They are:

  • A statutory definition of consent
  • The test of reasonable belief in consent
  • The evidential and conclusive presumptions about consent and the defendant’s belief in consent

Section 74 defines consent as “if she agrees by choice, and has the freedom and capacity to make that choice”. In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:

  • Acts intentionally;
  • (B) does not consent to the act; and
  • does not reasonably believe that B consents.

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1-4). It is likely that this will include a defendant’s attributes, such as disability or extreme youth. This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps he took to satisfy him that the complainant consented.

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