Consent is an agreement between participants to engage in sexual activity. Section 74 of the Sexual Offences Act 2003 states that someone consents to vaginal, anal or oral penetration only if they agree by choice to that penetration and have the freedom and capacity to make that choice.
This means that if someone agrees to vaginal sex, having anal sex or oral sex instead would be considered rape.
Capacity means being able to make your own decisions and communicate them. It means that if someone is asleep, unconscious, under the influence of drugs or too drunk, then they don’t have the capacity to agree to sex. Any sexual act with that person would be considered as sexual assault. People with learning disabilities or severe mental health problems might also not have the capacity to agree to sex.
Freedom to make that choice means that the person agreeing to sex isn’t agreeing because they feel scared, threatened or under pressure to agree. For example a victim of domestic violence, or someone significantly younger or too young to understand what they are consenting to.
Consent can be withdrawn at any time during sexual activity. Consent is specific to each time activity occurs. Agreeing to sex yesterday does not mean that they agree to sex today.
How does consent work in real life?
When you’re engaging in sexual activity, consent is about communication. Giving consent for one activity, one time, does not mean giving consent for increased or recurring sexual contact. For example, agreeing to kiss someone doesn’t give that person permission to remove your clothes. Having sex with someone in the past doesn’t give that person permission to have sex with you again in the future.
You can change your mind at any time.
You can withdraw consent at any point if you feel uncomfortable. It’s important to clearly communicate to your partner that you are no longer comfortable with this activity and wish to stop.
Positive consent does NOT look like this:
- Refusing to acknowledge “no”
- Assuming that wearing certain clothes, flirting, or kissing is an invitation for anything more
- Someone being under the legal age of consent. In Britain this is 16.
- Someone being incapacitated because of drugs or alcohol
- Being pressured into sexual activity by using fear or intimidation
- Assuming permission to engage in a sexual act because you’ve done it in the past