Understanding Consent in Sexual Offence Cases

Talking about consent and promoting a “consent culture” matters. It is a necessary step if we are to overcome the so-called “rape culture” that normalises and even justifies sexual violence in the modern age.

A clear understanding of what sexual consent means can help prevent rape and other sexual offences. Not only that, but it can also people to get justice when they have been the victim of, or wrongly accused of, a sexual crime.

It’s important to know the facts when it comes to sex and consent. Keep reading to learn more.



What is consent?

The legal definition of consent is when a person actively agrees to something, freely and when they have the capacity to make such a choice. Being silent or not saying no is not the same as actively giving consent.

As outlined in the Sexual Offences (Scotland) Act 2009, someone cannot give consent when they are:

●     Asleep

●     Under the influence of drugs or alcohol

●     Coerced or threatened (this also applies to threats made against others, e.g. loved ones)

●     Scared

Withdrawing consent

The Sexual Offences (Scotland) Act 2009 Act also provides guidance on situations where consent is initially given and then later withdrawn.

It states that consent to one type of conduct does not imply consent to any other type of conduct. For example, if a person agrees to kissing but not to sexual intercourse and then sexual intercourse takes place, they have not consented. This can also apply when a person agrees to protected sex but not to unprotected sex.

The legislation also explains that consent may be withdrawn at any time, whether it’s before or during the conduct in question. If the conduct takes place or continues to take place after consent has been withdrawn, it does so without consent.

Capacity to provide consent

Whether someone has the capacity to provide consent is a key part of establishing whether a defendant is guilty or not guilty in sexual offence cases. If the victim of a sexual crime has any mental illness, personality disorder, or learning disability, this must be acknowledged. A person is deemed to be lacking the capacity to consent if their mental disorder means they are unable to do one or more of the following:

●     Understand what the conduct is

●     Decide whether or not to engage in the conduct (or whether or not the conduct should take place at all)

●     Communicate such decisions

If you’ve been accused of a sexual offence, you’ll need legal support. For legal representation and advice from Aberdeen’s leading criminal lawyers, book an appointment with Lefevre Litigation before you do anything else. Get in touch to find out more about the legal services we offer.