Thursday, 14 January 2016

What is Consent?

Consent is defined by section 74 Sexual Offences Act 2003. Someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. 

There is a big difference between consensual sex and rape. This aide focuses on consent, as allegations of rape often involve the word of the complainant against that of the suspect. The aim is to challenge assumptions about consent and the associated victim-blaming myths/stereotypes and highlight the suspect’s behaviour and motives to prove he/she did not reasonably believe the victim was consenting. We provide guidance to the police, prosecutors and advocates to identify and explain the differences, highlighting where evidence can be gathered and how the case can be presented in court.


Context is all important to the consideration of freedom and capacity to choose. It is necessary to focus on complainant’s state of mind in the context of all the relevant circumstances. These will include: their age, maturity and understanding; whether s/he knew or understood the position they were in and what they were being asked to do; the history of the relationship between the complainant and suspect; position of power over the complainant; and, especially for younger and/or vulnerable victims: any earlier provision by the suspect of any gifts, alcohol or drugs; promises by the suspect of a more secure or exciting way of life; insincere compliments and/or kindness shown by the suspect; any other evidence of exploitation or grooming so that s/he may not understand the full significance of what they are doing.

Capacity to Consent
Issues to consider include whether the complainant had the capacity to consent if: s/he was under the influence of drink or drugs; s/he suffers from a medical condition which limits their ability to consent or communicate consent; s/he has a mental health problem or learning disabilities; s/he was asleep or unconscious.

Freedom to Consent
Issues to consider include whether the complainant had the freedom to consent, for example, in situations such as: domestic violence – where a partner or family member may use force or power to remove a complainant’s freedom to consent; where the suspect was in a position of power where they could abuse their trust, especially because of their position or status – e.g. a family member, teacher, religious leader, employer, gang member, carer, doctor; the complainant was dependant on the suspect, e.g. financially or for care. If the complainant was young, was s/he significantly younger than the suspect? Was the complainant old enough to consent? 

Spousal rape is a criminal offence in the UK.


Vulnerable Victims 
Vulnerable victims are targeted by offenders for a whole range of reasons, including the belief by offenders that: the complainants are more likely to succumb to pressure or intimidation on them to “comply” with the offender’s sexual advances; in some cases they may be less likely to have “home support” where the suspected abuse will be noticed or acted on; they are less likely to report the abuse in the first place due to their vulnerabilities; if they do report, they are less likely to follow it through to giving evidence; they will not be believed by those to whom they report it to, e.g. the CPS when deciding if to charge and, ultimately, the jury; overall, the likelihood of detection and prosecution is low.

Addressing Myths and Stereotypes
The form of dress a person wears does not mean they should expect to be raped. The majority of rape cases are where the offender and complainant know each other. Trauma can affect memory and create inconsistency. Being drunk makes the complainant vulnerable. It does not mean they were ‘asking for it’; most victims do not fight; resistance and self-protection/defence can be through dissociation, freezing or trying to befriend the defendant – in fact any effort to prevent, stop or limit the event. It does not have to succeed to be an ‘effort’. Late reporting may be due to inability to cope with the trauma of the incident, fear of repercussions, maturity with age recognising the abuse, control of the complainant, fear of going to court. In cases of adult survivors of child abuse the complainant may regress and behave or speak as a child.


Here are some red flags that indicate your partner doesn’t respect consent:
  • They pressure or guilt you into doing things you may not want to do.
  • They make you feel like you “owe” them — because you’re dating, or they gave you a gift, etc.
  • They react negatively (with sadness, anger or resentment) if you say “no” to something, or don’t immediately consent.
  • They ignore your wishes, and don’t pay attention to nonverbal cues that could show you’re not consenting (e.g. pulling/pushing away).
Get Consent Every Time
In a healthy relationship its important to discuss and respect each others boundaries consistently. It is not ok to assume that once someone consents to an activity that is means they are consenting to it anytime in the future as well. Whether its the first time or the hundreth time; a date, a committed relationship or even marriage, nobody is ever obligated to give consent just because they have done so in the past. A person can decide to stop an activity at any time even if they agreed to it earlier. Above all, everyone has the right to their own body and to feel comfortable and how they use it - no matter what has happened in the past.


"He raped me on numerous occasions forcing me to have sex because he needed it and held me down even through my tears. He ensured the act was completed on his terms, in his time frame and satisfying his own desires. He was demanding, kinky and rough and did not stop when asked. He showed no compassion for me even when I suffered gynaecological problems and had no empathy or sympathy and was still extremely demanding and rough sexually. When he was particularly vile he with-held affection and used affection and sex it to blackmail me. He definitely got a kick out of degrading me and enjoyed his power of force; power and force in the bedroom definitely turned him on."

See blog post here: 
by Mrs Teacup: My Story of 20 years of Domestic Abuse


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