In 2003 a new Sexual Offences Act replaced the 1956 version as a more expansive look at criminal sexual acts. One of the biggest revisions is a focus on consent. The Sexual Offences Act from 1956 did not provide any definition of consent in relation to sexual acts.
Instead, judges were to base decisions regarding consent on the basic definition of the word, which according to the Cambridge Dictionary is simply ‘permission or agreement’. In the context of a legal trial, this definition is vague and inadequate.
The Sexual Offences Act of 2003 does give a legal definition of consent that pertains to sexual acts and following sections gives more explicit detail around the issue of consent.
Section 74 of the Act states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’ The two following sections expand on this, providing factors that prevent the possibility of consent. These include:
- Violence or the threat of violence
- Unconsciousness (including sleep)
- Inability to communicate consent due to disability pertaining to communication
- The issuing of substances that physically and mentally impair
- Deception regarding the nature or purpose of the act
- Additionally, in the UK the legal Age Of Consent is 16, any persons under 16 are not legally considered able to give consent to sexual acts.
In the context of a criminal trial regarding the issue of consent, the Crown Prosecution Service states the following:
‘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.’
But is reasonable belief enough?
What is considered ‘reasonable’?
Affirmative Consent is the concept of ‘Yes Means Yes’.. The idea that each party engaged in any act is mutually invested in it and communicate that investment with each other. It is active consent, without room for confusion.
When discussing rape or sexual assault, ‘No Means No’ is a phrase commonly expressed, there are campaigns titled as such worldwide. While no does in fact mean no and should be taken seriously, it implies a situation in which a sexual act occurs until the utterance of ‘no’. It implies that there has not been a ‘yes’.
Sexual activity should not occur without the presence of the enthusiastic yes. Ever.