Issues Surrounding Consent in Sexual Relationships
In our Introduction to Consent, we learned about the fundamental elements of consent - choice, freedom, capacity and reasonable belief. But which situations may we find ourselves in that change the nature of consent?
Does consent need to be verbal?
We should be encouraging more verbal discussions around consent. Verbal consent is the easiest way to ascertain whether someone provides you with their consent. There are therefore no assumptions or risks of committing sexual violence. Don’t. be afraid to verbally ask for consent. You might think it will ‘kill the mood,’ but avoiding the question it is not worth the risk of making feeling someone feel uncomfortable and possibly committing sexual violence against them.
What if two people are under the influence of drugs or alcohol?
This scenario can get a little tricky. Essentially, once you have consumed a substance that alters your state of mind, the court may consider that you do not have the capacity to provide your fully-informed consent. Alcohol or drugs alter your state of mind and you ultimately may not be able to give consent. (It’s important to remember here that it is never the victim’s fault, regardless of whether they have consumed a substance, but more on victim-blaming and rape myths in a coming blog).
But, what happens if two people are under the influence? Can neither party give consent?
Technically, as previously outlined, the consumption of alcohol or drugs limits your capacity and therefore your ability to consent. Nonetheless, consensual sex whilst intoxicated is quite common. However, it’s important to consider the state of mind of your sexual partner and whether they have the capacity to consent. Do not be afraid to ask for verbal consent - never assume.
What if you are in a relationship?
Marital rape did not become a criminal offence in England and Wales until 1991. It was legal for a husband to rape his wife. But, today, consent is the most important element of sexual relationships. Regardless of whether you are in a romantic relationship with your sexual partner, there should never be an assumption of consent. You must give and receive consent for every single sexual activity that you engage in with your partner. A relationship does not amount to consent. Ask your partner about what they are comfortable with.
What is the age of consent?
The legal age to consent to sexual activity in England and Wales is 16. However, under the Sexual Offences Act 2003, a person under the age of 13 is not legally capable of consenting to sexual activity.
There is no requirement to prove consent in these circumstances:
Rape of a child under 13
Assault by penetration of a child under 13
Sexual assault of a child under 13
Inciting or causing a person to engage in sexual activity with a child under 13
Child sexual offences involving children under 16
Children under 18 having sexual relations with persons in a position of trust
Only the age must be proved in these scenarios as these are statutory offences. It is also a criminal offence for anyone aged 13, 14 and 15 to have consensual sex with anyone else aged 13, 14 or 15.
When can you withdraw consent?
You can withdraw your consent at any time and for any reason. You do not have to justify this. A simple “no", “stop” or body language that suggests withdrawal of consent will suffice.
Just because you initially consent to a sexual activity, it does not mean that you are required to continue that activity. It’s ok to change your mind part of the way through.
If your partner changes their mind and you continue or force them to continue in any way, you are committing a sexual offence.
What if I feel under pressure?
If someone refuses consent or decides to withdraw their consent, do not pressure them to change their mind. Pressuring, coercing, manipulating, bullying or intimidating someone into consenting removes their freedom of choice and invalidates the consent. No means no.
What if you have consented before?
You need to give or receive consent for every single individual sexual activity. So, just because you may have consented to something on a previous occasion, it does not mean that you automatically consent to that activity in future. You must give or receive consent again.
What if you cannot remember whether you consented?
This can be quite a difficult situation to find yourself in, especially when substances have been involved and you do not have a clear memory of the sexual activity. Whilst it is important that we don’t make false allegations, if you are concerned about your consent or possible lack of, tell someone you trust.
What if you change your mind but don’t say so?
Changing your mind but not signifying to your sexual partner that you have changed your mind can be confusing. But ultimately, if your sexual partner has a reasonable belief that you provided your consent, then the courts will consider this as a defence.
There is an important message weaved throughout these questions and answers - if you are not sure, ask. Obtaining verbal consent to sexual activity is the most effective and definitive way to ensure that your sexual partner has provided you with their consent.
Please get in touch if you have any more questions about consent.
Image from https://www.psychologies.co.uk/sex-and-consent-podcast-ukcp
