The absence of consent characterises sexual violence – any sexual act that occurs without consent is sexual violence. Consent can be defined as agreement by choice with the freedom and capacity to make the choice. Consent via choice and freedom means that consent cannot be obtained via manipulation, bullying, intimidation, threats, deception, force, or coercion. These characteristics remove a person’s ability to make a choice freely without any constraints. Consent also requires a person’s capacity to make a choice which can be influenced by their age, vulnerability and understanding:
- Age – the age of consent in the UK is 16 which means that children under the age of 16 cannot consent to sex.
- Vulnerability – consent cannot be given by someone who is too vulnerable to have the freedom and understanding to consent. This may be due to illness, disorder, or disability as well as other factors.
- Understanding – someone who is asleep, unconscious, drunk, drugged or ‘on’ drugs cannot consent.
The Sexual Offenses Act 2003 (England and Wales) defines consent as when a person ‘agrees by choice and has the capacity to make that choice’.
In the eyes of the law, consent is the agreement between participants to engage in sexual activity. All those involved must have the freedom and full capacity to make that decision. Engaging in a sexual act without the person’s consent is sexual violence, and is a criminal offence.
The law around consent makes consensual sex and sexual assault seem very black and white when, in reality, consent can be ambiguous and confusing.
What does the law mean by freedom and full capacity?
When the law uses the words ‘freedom’ and ‘capacity’ in relation to consent, it is talking about someone being able to agree to sexual activity with full understanding of what they are agreeing to, and no pressure to say ‘yes’.
Another way of thinking about it is consent is someone saying ‘yes’ only when they REALLY mean ‘yes’ because it is something they genuinely want to do. This is sometimes called ‘enthusiastic consent’.
There are situations where someone might not be able to give consent because they don’t have the freedom or capacity to do so. Some examples of this are:
Someone who is asleep or unconscious is not aware of what is going on and, therefore, does not have the mental capacity to consent to sexual activity.
If someone is being, manipulated or threatened in to sexual activity, they do not have the freedom to consent. This is because their decision is being influenced by pressure and/or fear. You can read more about dealing with pressure here. Threats could include physical violence, but also things like threatening to break-up or to share secrets or images with other people.
If someone is unable to withdraw their consent, for example if they aren’t able to speak or communicate clearly, then they don’t have the freedom to express consent. In short: if they can’t say no, then they can’t say yes either.
In the UK, the legal age of consent is 16. This means that, legally, a person under 16 is not able to consent to sexual activity because they are seen as not having the capacity to do so. It is important to remember that the law is designed to protect young people from abuse, harm or being taken advantage of by adults. It is not meant to criminalise young people and there is no intention to prosecute people under the age of 16 where both mutually agree (consent) and where they are of a similar age. Please see further information here.