Consent refers to the voluntary agreement of an individual to participate in an action proposed by another person, and it plays a key role in determining legal liability, particularly in cases of sexual assault.

The Law

Consent is defined by section 74 of the Sexual Offences Act 2003 as: a person consents if he agrees by choice and has the freedom and capacity to make that choice.

Section 75: Evidential presumption about consent:

1. If in proceedings for an offence to which this section applies it is proved—
   a)     that the defendant did the relevant act,
   b)     that any of the circumstances specified in subsection (2) existed, and
   c)     that the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

Subsection 2 above refers to six different circumstances whereby consent could not be established. These range from use of violence/ fear of violence, the complainant being asleep/ unconscious at the time of the activity, ‘spiking’, or the complainant did not have the capacity to communicate their consent.

The broad scope and technicalities encompassing the issue of consent means that it has long been an area of contention for many defendants, complainants, and legal professionals. It may be for this reason that The Supreme Court of Canada has now held that affirmatively communicated consent must be given for each and every sexual act…nothing less than positive affirmation is required.

Consent as a Defence

Social attitudes have continued to evolve and have demonstrated differing approaches to consent as a defence. This is a vast issue and one which has been discussed for decades, with landmark case such as R v Brown [1993].

Whilst we do not intend to delve into the depths of consent as a defence during this blog, it should be noted that consent can either be express (explicit, verbally or in writing) or implied (inferred from a complainant’s actions). It is often the case that during sexual activity consent to sexual acts are implied, and this is where scope for ambiguity and legal argument lies.

The key aspect to be taken from the above is that sufficient evidence must be available to prosecute and a defendant must not have reasonably believed that the complainant consented. To prove the defendant’s mindset at the time of an alleged offence, particularly whereby implied consent is argued, is one of the biggest challenges the prosecution must overcome.

A Review of Consent

In September 2025, the Law Commission launched a project aiming to resolve inconsistencies and modernise the Criminal Law on consent in England and Wales.

Whilst the project has not yet commenced, it is hoped that when it does, the law becomes clearer for both defendants and complainants.

Conclusion

The nature of allegations relating to alleged offences of rape, assault by penetration, sexual assault, or causing a person to engage in sexual activity without consent mean that early instruction is vital. It is imperative that if you are facing such allegations, you contact a specialist lawyer immediately, allowing the exploration of the issue of consent in your case from the early stages.