A lot of people do not really understand what consent means. We often talk about it in vague terms and when asked about it, people often think they understand exactly what it is, so do not bother looking into it further. Nevertheless, friends have confided in me countless times that they realised that their consent had not been respected in previous instances after reading into the specificities of consent and they are not alone in that. You only have to go on Instagram and scroll through pages such as St Andrews Survivors to realise how common this issue is. This highlights how important it is for consent to be discussed thoroughly and clearly.
So let’s break it down.
In order to obtain consent, one must agree by CHOICE freely and have the FREEDOM and CAPACITY to make that choice. This means that it is only up to the individual to decide whether they want to engage in sexual activity and they must want to engage in this activity. It is a personal choice which must not be impacted by power imbalances (e.g. financial control, age…). On top of this, in terms of capacity, to be able to give consent, one must be physically and/or mentally capable of making that decision. Their physical and mental capacity can be impacted by drug or alcohol use, learning difficulties and previous traumas.
To reiterate, in order to give consent, one must have the capacity to do so. In fact, according to section 75 of the Sexual Offences Act 2003, in some instances it will be presumed that consent was not given:
1. If asleep or unconscious;
2. If at the time of the act or immediately before fears the use of violence against them or has been subjected to violence;
3. If they are unlawfully detained whilst the perpetrator is not;
4. If consent could not be given at the time due to physical disability;
5. If a substance capable of overpowering was unwillingly administered to the person in question, e.g. drink was spiked.
Furthermore, consent cannot be given in cases of fraud. While this may seem evident, unfortunately, there have been various instances which led to it being embedded in the law. Firstly, consent is negated when the person is deceived by the nature and purpose of the relevant sexual act. For example, in R v Williams , a singing coach told his pupil that by performing an act, it would improve her singing when in fact he forced her to engage in sexual intercourse. This requirement also entails that consent is contextual. Ergo, if it is given with certain stipulation (such as wearing a condom), one’s consent is removed when that stipulation is not respected. Think of the stealthing scene portrayed in I May Destroy You. Secondly, it is also the case when the perpetrator intentionally impersonates someone that is known to the survivor. Thirdly, it is important to note that consent can be withdrawn at any time, even during the act, and consent can be given for one sexual act but not another. All in all, for consent to be given, one must not only feel comfortable doing so but they must also be well informed on the situation and act. While it may seem as though there are a lot of particularities to remember, it can be summarised in a couple of words: For consent to be respected, one must feel comfortable, safe and there needs to be transparent communication. When in doubt, it’s always good to ask.