What actually counts as consent?

What the law says on rape and sexual assault


Last week Warwick student George Lawlor sparked massive debate when he said he didn’t need to go to consent classes because he “didn’t have to be taught not to be a rapist”.

Then, 61 per cent of you told us you didn’t think students needed consent classes. But what does it actually mean to understand consent – the legal definition of what you can and cannot do? We spoke to Sandra Paul, a solictor at top law firm Kingsley Napley.

On her blog, Sandra explains being so drunk you didn’t know what you were doing, can’t remember or mistakenly believed you had consent for sex, is not a legal defence. And according to the solictor, the majority of cases are like this in practice. At university, stranger rape is comparatively rare, so instead, from a legal perspective, it comes down to circumstances. Defence and prosecution has to find out not just what happened on the night of the event, but what each person is like. Sandra describes having to speak to ex-girlfriends and past one night stands to find out what kind of person someone is, and whether they would usually understand the world “no”.

The parts of the law you need to know

Consent in the law is specific, and only applies to each act. If for instance, you have sex with someone who has said they’re going to use a condom and they don’t, consent is removed, and they could be convicted. One case saw a husband convicted of rape because his wife only consented to have sex with him if he withdrew, and he didn’t. He appealed the conviction but lost.

Sandra says: “If I say I’m going to have sex with you in a certain way, if you do it different, you don’t have consent for the other act. This would be considered rape.”

Even in large groups, if you don’t physically participate, you can still be prosecuted under the principal of joint enterprise. You’re liable for any sexual assault which happens while you’re present if you can be said to be participating and active in any way — even if it’s something as simple as shouting encouragement. If you fail to separate yourself from the behaviour of that group, you can be convicted.

Sandra says: “People are much less tolerant of that behaviour now. The issues of consent are the same whatever context it takes place in – they’re not protected or special because they’re part of some sort of long held initiation ceremony. The rules are the rules.”

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CPS have also created a blog and videos to ‘myth bust’ issues around consent and sex

When looking at the night itself it comes down to evidence – CCTV, eyewitnesses, and whether sex with implicitly or explicitly discussed at any point. But it’s not always so simple. “At the end of the day though you have two people – only they were there. If you can convince the jury ‘here’s what I did, said and heard which made me believe i had consent’ a jury won’t convict you. To convict there has to be no reasonable belief that you had consent.”

But she says it’s not all doom and gloom. “I wanted it to be balanced. You don’t want to take the joy out of the thing. But the mere whiff of these sorts of allegations in this day and age is serious when you can’t forget anything once it’s out there, particularly because you have no anonymity for people who are accused – which is outrageous I think.”

While the internet is bursting  with resources for victims of sexual assault, Sandra also talks about protection for the accused.

“These accusations are with you for the rest of your life. If something happens to me aged mid 40’s you might think because my career’s built, my peers are understanding, they might consider more whether it’s true or not, knowing me. But when you’re 18 you have no background, you have nobody backing you up. Those allegations can be life-altering when you’re young.

“It’s very rare to come across people who will say ‘let’s wait and see what the evidence is and whether he’s acquitted’. It’s always like ‘well where there’s smoke there’s fire’, there’s a lingering bad smell that goes with an allegation like that – and that alone is reason enough to say there’s argument for anonymity. It’s not about who’s right and who’s wrong, it’s just about having a level playing field.”

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‘If you think about something like Sleeping Beauty – classic, very innocuous, we all know it. But actually, that’s sexual assault isn’t it? People don’t talk about the detail of that.’

 

But with the massive amount of information and awareness now surrounding the issue of consent, Sandra says some of it is “difficult” citing Lady Gaga’s Til It Happens To You as an example. The video, which has been viewed nearly 18 million times on Youtube, depicts violence against women and various sexual assaults and was made to coincide with The Hunting Ground, a film about campus rape in the US.

Sandra says: “Of course it has a place and for some people that’s important, but if the aim is to educate people, the message needs to be much more accessible. We need to take emotion out of it and identify consent as a fact of life.”