Personal Life

Consent

We know that the age of consent is 16, but what does that mean? 

The law does not permit sexual activity and intercourse between children under 16. But whether the law should intervene when children engage in sex with each other is a completely different matter. Most children have engaged in sexual activity before their 16th birthday, but what is normal and healthy or might amount to harmful sexual behaviour is often at the heart of consent.

In sexual activity, a person consents only if, and only if, he or she has the freedom and capacity to make a choice, and he or she exercises that choice to agree to the sexual activity.  Additionally, a person only commits an offence in the absence of consent if they lacked a reasonable belief in consent.  The age and maturity of those involved will be critical. There are other legal presumptions that set our circumstances where there will not or may not be consent, such as where the victim is asleep, subjected to violence or unlawfully detained.  

Sometimes the issue of consent is straightforward, for example in respect of a child under 13, where there will be no real question that there has been an offence committed, the only issue will be by whom.  However, in the vast majority of sexual offences, consent and reasonable belief in consent, will be a live issue.  Even when the central questions might relate to the disputed facts of a case, consent will still likely be a crucial element of the offence.

The intoxication of the complainant, the accused or both has become a prevalent and controversial issue in recent years, and often involves young people.  A drunken consent is still consent, but a person so intoxicated by drink or drugs might lack the capacity to make a choice, or indeed to exercise that choice in a meaningful way.  Unpicking these issues, particularly in the often hazy aftermath of a long night out, can be challenging and specialist.  Morally reprehensible behaviour is not criminal if undertaken by consenting parties.  We all have done things that with hindsight we regret.  But consent, and a reasonable belief in consent, happens in the moment, and not in the moralising that might follow nor indeed in the planning.  Children do take drink and drugs and this necessarily involves a loss of inhibition and impaired judgment. However, a person who lacks the capacity to make or exercise a free choice, who is in a vulnerable state, for whatever reason, voluntary intoxication or otherwise, does not lose their right to respect and integrity.  That is a line that must be understood and respected. 

The evidence about consent needs to be collated and examined with the utmost care.  What a complainant and accused has said or done after an incident, whether immediately or in the days, weeks or months following, can be important.  Electronic evidence and social media communications can be illuminating, but is far from straightforward.  CCTV or other evidence or surrounding circumstances, if not the actual allegation, can be very important, and easily lost.

The previous sexual conduct or behaviour of the complainant is a topic that is controversial but which can be relevant to consent, or at least a reasonable belief in consent.  Although generally speaking the previous sexual behaviour of a complainant is inadmissible evidence, there are limited exceptions that mean a court can be told of previous behaviour or incidents, if it is relevant to some other issue in the case.  For example, evidence of strikingly similar previous behaviour may be admissible to help an accused prove what factually occurred, where co-incidence could be ruled out.  

If your child is facing a sexual allegation, especially if consent is an issue, it is vital that you get expert, specialist advice as soon as possible. 

Early intervention can often make a significant difference.  If you have not yet received legal advice or if you have had the duty solicitor and you want ongoing expert assistance, support and representation then contact us now.

The next step is to contact us. Call 01225 485700 or email confidential@mowbraywoodwards.co.uk

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