Is Consent As Simple As Yes Or No?

Yes means yes, and no means no, right?

When it comes to consent, the law surrounding the issue is much more detailed and nuanced than a simple yes or no issue.

What is consent?

A person consents if they agree to something through their own choice and they have the freedom and capacity to make that choice.

Can a drunk person consent?

Yes, it is possible for a drunk person to consent, however this is where many of the issues arise as it is possible for somebody to be drunken to the point where they no longer have the capacity to consent.

Consent is frequently the issue in many rape cases where it is one word against the other.

The Courts have said to focus on these issues:

1.    Did sexual intercourse take place?

2.    Did the complainant consent to sexual intercourse?

3.    Did the complainant have the freedom and capacity to consent?

4.    Did the defendant reasonably believe that the complainant was consenting? (this does not apply in all cases).

Who decides?

Having heard all of the evidence it will be up to the jury to decide wether or not the complainant had the capacity and the freedom to consent.

How do you prove consent?

In the absence of a written contract, and even then, there could be doubts, it is for the jury to decide having heard the evidence.

It may be that the defendant needs to show evidence that he or she made an effort to be certain that the other person was able to consent.

If there is a condition included within the consent, for example, that a condom must be used then if this condition was not met then the consent may no longer be valid.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

How can we help?

This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other. It is our job to present the strongest case possible.

You are entitled to free and independent advice at the police station, regardless of your means, and we can provide that advice. Contact Morton’s Solicitors on 0161 477 1121 or Contact Us for further information or to discuss your case.