What Is Rape?
Sexual Offences Act 2003,
A person commits an offence if:
- They intentionally penetrate the vagina, anus or mouth of a person.
- The person does not consent to the penetration.
- They do not reasonably believe that the person consents.
A person consents when they "agree by choice, and has the freedom and capacity to make that choice."
Examples of when someone doesn’t have freedom or capacity to agree by choice or to consent are:
If someone is under the age of 16, they don’t legally have the capacity to consent to sex.
If someone is asleep or otherwise unconscious, they don’t have the capacity to consent.
If someone has taken a substance which was capable of causing or enabling the complainant to be intoxicated or overpowered at the time of the relevant act.
If someone has been held against their will, or kidnapped, they don’t have the freedom to consent.
If the perpetrator has used violence against the complainant, causing the complainant to fear that immediate violence would be used against them at the time of the relevant act, they don’t have the freedom to consent.
Being coerced, bullied, scared, shocked or threatened takes away our freedom and capacity to make choices. Because freedom and capacity are central to the definition of consent, someone saying "yes" to sex doesn’t automatically mean they’ve consented. If someone is in an abusive or exploitative relationship, they might say "yes" out of fear.
Consent is not like a physical permit that, once issued, can be saved for use at a future date.
Having consented to sex with someone once or several times in the past doesn’t mean they have consented to sex with that person indefinitely. The person who previously willingly had sex, might not want to have sex again and that’s their human right and prerogative.
A person can give their consent to one kind of sexual activity but not another.
For example, someone might consent to vaginal but not anal penetration, or they might consent to sex with a condom but not without one.
A person has the right to withdraw their consent at any point during sexual activity.
This is equally true in both the law of the land and the law of basic human decency. If a person is in a sexual encounter with another and they ask them to stop and they don’t, they are committing a sexual offence.