Sexual consent and the law
The definition of sexual consent in law is clear, but in real life, it’s confusing. We asked top lawyer Kim Harrison to help us better understand sexual consent and the law.
In law, a person has consented to sex if ‘she or he agrees by choice and has the freedom and capacity to make that choice’. This means they can’t be unconscious, asleep, drunk, or too young to understand about sex – we explain more here.
The law says that in court, there are two ‘tests’ that judges and juries should use to work out if consent was given. The accused must:
- Believe they got consent for sex.
- Their belief must be ‘reasonable’ – for example, if a person was unconscious at the time, there’s no way they could reasonably have agreed to sex.
A court will want to know about the relationship history too – and whether violence, grooming or exploitation occurred, or a power imbalance – for example, a teacher with a pupil.
“The law tends to create a general rule with some exceptions, but each case will turn on its own facts”, explains Kim. “So in deciding whether someone is consenting to sexual activity, young people should use their common sense and communicate with each other”.
Here are some common scenarios when consent can become legally and emotionally confusing:
If you can’t remember what you did, say because you were drunk
If a person is accused of a sexual offence, proving they got consent relies on them being able to fully remember what happened. By definition, being so wasted you can’t remember anything will mean you didn’t get consent.
Kim says: “Remember – the person performing the act needs to have a ‘reasonable belief’ that there is consent. If you’re too intoxicated to form that reasonable belief then that’s your defence gone.”
If you’re confused about whether someone is really drunk or not
Drink and drugs can limit our ability to make good decisions and lessen our understanding of what’s going on.
Someone could be absolutely plastered and seem fine to you. If you’re in this situation it might be best to say to your partner that you think they’re too drunk and you can’t tell if they really want to do this. See our article about having sex when you’re wasted for more information.
If someone doesn’t actually say “no” or “yes”
There isn’t anything in the law that says it has to be verbal,” explains Kim. “The clearer you can be with each other about what you want to happen the better.”
In stressful situations, people use all kinds of body language to indicate they aren’t happy but sometimes say nothing out loud. Similarly, if a person is enthusiastic about having sex, you’ll know about it, but they won’t necessarily be yelling “YES!”
If you want to send sexts (sexy pictures)
Again, confusing. If you or your partner are under 18, sending sexy pictures and sexy messages is against the law. It’s also against the law to share sexually explicit images of someone else without their consent, no matter what age they are.
What happens when you’re accused of a sexual offence?
If you were accused of a sexual offence you would be questioned by the police and other agencies.
If found guilty you’d be charged with an offence and face a criminal record. This could result in your name appearing on the sex offenders register and a possible prison sentence.
Still confused? Here’s our best answer:
Sex should be fun – for both parties. Why would you want to do it when you won’t be able to fully remember what happened?
Good sex is about having good communication and interpreting body language. If you saw a friend frozen and unable to speak you’d probably know something was wrong. Well, the same rules apply in the bedroom. Stop immediately if you feel something is wrong and make sure your partner really wants to carry on – that way, you’ll always get 100% consent.
- Brook provides free sexual health and wellbeing services for young people in the UK. Brook's services include local clinics and online digital sex and relationships tool.
- Rape Crisis offers support and advice to victims of rape and sexual assault, no matter how long ago the attack was. 0808 802 99 99
- SurvivorsUK offers advice and support to male victims of rape and sexual assault. Text on 020 3322 1860.
- Chat about this subject on our Discussion Boards.
- Need help but confused where to go locally? Download our StepFinder iPhone app to find local support services quickly.
Updated on 22-Sep-2016
Image courtesy of Shutterstock.
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