Written by: Amy Crossley, PNLD Legal Adviser
Not reviewed after the date of publication - 25 March 2026
‘Consent’ is a key component and a central and crucial evidential part of cases involving offences under the Sexual Offences Act 2003.
PNLD Legal Adviser, Amy Crossley, provides a summary of the statutory provisions around consent, some case insights demonstrating these principles in practice, as well as some practical considerations for investigators dealing with these types of cases.
Consent
Definition of Consent
Consent, in the context of sexual offences, is often a contentious issue evidentially. It can form part of the actus reus or mens rea of an offence depending on the type of crime. The fact that consent was provided, or a belief in such, can feature as a defence in many cases.
It is important to note that the age of consent to sexual activity in the UK is 16 years.
In the SOA 2003, ‘consent’ is defined in section 74 for the purposes of sections 1 to 79:
“a person consents if he agrees by choice and has the freedom and capacity to make that choice”.
Putting this under the legal microscope, we can see that, by definition, consent requires an active choice made by a person who has both;
- the freedom of agreement; and
- the capacity to make that choice.
The SOA 2003 does not further define ‘freedom’ or ‘capacity’ and so this has been interpreted largely through the courts.
Section 74 in Practice
Case Insight: a lie about fertility was not capable of negating consent under section 74
In the case of R v Lawrence (2020), L informed the complainant that he had undergone a vasectomy. Sexual intercourse took place and C became pregnant. The prosecution case was that C's consent was vitiated by L's deception that he'd had a vasectomy and that even if he genuinely believed that she had consented, such a belief was unreasonable. On the basis of the deception, C agreed to unprotected sexual intercourse when otherwise she would have insisted on L wearing a condom. The defence submitted that deceit as to fertility would not be sufficient to negate consent. The judge ruled that if the jury accepted the evidence of the complainant, L's deceit as to his fertility was capable of negating her consent to having sexual intercourse with him. The deceit went to the consequences of the sexual act, which was the risk of pregnancy, and was insufficiently connected with the sexual act to negate consent. L was convicted but this was overturned on appeal. The court held that a lie about fertility was different from a lie about whether a condom was being worn during sex, different from engaging in intercourse not intending to withdraw having promised to do so and different from engaging in sexual activity having misrepresented one's gender. In terms of section 74 of the SOA 2003, C was not deprived by L's lie of the freedom to choose whether to have the sexual intercourse which occurred. It makes no difference to the issue of consent whether there was an express deception or a failure to disclose. The issue was whether L's lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it, and in this case, it was not. L's lie about his fertility was not capable in law of negating consent.
The prosecution are required to prove that consent was absent (actus reus), and the perpetrator did not reasonably believe consent had been given (mens rea) in the following offences under the SOA 2003:
- Rape under section 1
- Assault by penetration under section 2
- Sexual assault under section 3
- Causing a person to engage in sexual activity under section 4
This will be discussed below in greater depth. There are a variety of offences involving sexual acts with children and persons with a mental disorder in which there is no requirement to prove an absence of consent. The proof that the act was committed and evidence to the victims age or condition is enough (see SOA 2003).
“Reasonable belief in consent”
For the specific offences in sections 1 to 4, mentioned above, it must be shown that the victim did not consent to the activity and that the perpetrator did not reasonably believe that the victim consented. The SOA 2003 expressly clarifies within these sections that whether a belief in consent is reasonable is determined having regard to all the circumstances, including any steps the perpetrator has taken to ascertain whether the victim consents. This imposes individual responsibility on the perpetrator to ensure consent is given. The reasonable belief test does not require the perpetrator to have taken any specific steps to ascertain consent, but any that are taken will be highly relevant to the case. When assessing whether the perpetrator held a reasonable belief in consent, factors such as the personal characteristics and attributes of the perpetrator such as their age, general sexual experience, sexual experience with this complainant, cognitive capability, mental or learning disability will be relevant to consider. It is also wise to consider any other factor that could have affected their ability to understand the nature and consequences of their actions.
Case Insight: Court examined wider context of the case to determine that ostensible consent was not genuine consent in a rape case
In the case of R v Ivor and others (2021), four defendants were indicted for rape of the victim, X. X was in a relationship with S and had been forced to have sex with the four defendants for S’s sexual gratification. The relevant context to this case was that S was the lead conspirator in a drugs operation along with the 4 defendants. They each knew there was a large age gap between X and S, and they knew that there was a disparity of power in the relationship. They were aware that X needed to drink alcohol and take drugs before the activity and one of the defendants overheard X expressing to S that she did not consent to the activity. At trial, the defence was argued that there was no evidence that X did not consent and that the prosecution could not prove an absence of a reasonable belief in consent. The jury were left to consider whether the victim’s consent was genuine and whether the defendants believed it was genuine. The four were convicted of a varying number of counts of rape against X. 3 of the defendants were then granted leave to appeal on a single ground; that there was no evidence supporting the conclusion that they did not have a reasonable belief that X consented. The appeals were dismissed with the court commenting that there was clear evidence of coercive control by S and the defendants were aware of the relationship dynamic. The court’s view, having taken account of all the available evidence regarding the context of these offences, was that the parties would have known that the ostensible consent from X was not genuine and therefore it was not possible for them to have reasonably believed she had consented.
Capacity to Consent – Intoxication
As stated, the person providing the consent must have the freedom and capacity to make that choice. Whether someone has capacity to make the choice is often difficult to determine where the person is intoxicated by drugs and/or alcohol.
In cases of involuntary intoxication and ‘spiking’, this is included in the statutory scheme for the conclusive presumptions about consent under section 76. We will deal with this in detail later.
Voluntary consent however is not provided for statutorily and so the principles have largely been developed by case law.
The CPS Guidance in this area states that:
“A complainant does not consent if they are incapacitated through drink… Evidence of a lack of recollection of events cannot itself be determinative of issues of consent and capacity.”
Case Insight: Lack of consent does not have to be communicated
In the case of R v Malone (1998), a sixteen-year-old girl became drunk and incapable of walking. She was put to bed by her friends after which M had intercourse with her. M contended that the victim’s evidence meant it could not be proved that she had physically resisted or that her understanding and knowledge were such that she had not been in a position to consent and subsequently the trial should have been stopped. The court dismissed the appeal against conviction, holding that there was no requirement that the absence of consent had to be demonstrated by the victim or communicated to the defendant in order for the offence of rape to be committed.
Case Insight: Temporary loss of capacity to make a choice, through consumption of alcohol or any other reason, means consent is not present.
In the case of R v Bree (2007), B and the victim consumed alcohol together and had sexual intercourse. The issue was whether B had the capacity to consent. The conviction for rape in this case was quashed but the court provided some valuable guidance. The court held that a proper construction of section 74 is that if, through drink (or any other reason), the complainant has temporarily lost capacity to choose whether to have intercourse on the relevant occasion, she is not consenting and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. The court further commented that practically, the capacity to consent may evaporate well before a complainant becomes unconscious.
Deception in Relation to Gender
Consent may be vitiated where there has been a deception by the perpetrator on the victim as to their gender.
Case Insight: Deception as to gender can negate consent
In the case of R v McNally (2013), M met the victim, X, online when they were children. M claimed to be a boy and continued to pretend she was a boy as their relationship developed. When M was 17 and X was 16, M visited X on four occasions and dressed as a boy. Sexual penetration of X took place both orally and digitally. X then discovered that M was female and M was charged with assault by penetration. M was convicted and appealed against conviction on several grounds, the most central to this discussion was that the offence had not been made out, deception as to gender could not negate consent as it was deception as to a quality or attribute. The appeal was dismissed. The court held that X had chosen to have sexual encounters with a boy and her preference had been removed by M's deception. Depending on the circumstances, deception as to gender could negate consent and, on the facts of this case, it did.
Please see the CPS Guidance on deception as to sex and gender for practical advice on the investigation and prosecution of these types of offences.
Evidential Presumptions About Consent – Section 75
Section 75 of the SOA 2003 provides for evidential presumptions in relation to consent, also known as the “rebuttable presumptions”. The presumptions mean that in strictly defined circumstances, there will be no need to prove a lack of consent on behalf of the victim, in relation to offences under sections 1 to 4 of the SOA 2003. If the circumstances are present and no evidence is offered to the contrary, then it can be taken that the complainant did not consent, and the defendant did not reasonably believe that they consented.
It must be also proved that the defendant did the relevant act (defined in section 77 of the SOA 2003) and that the defendant knew that any of the circumstances existed.
The circumstances in section 75(2) are;
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant's physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
In order for these presumptions not to apply, the defendant will need to satisfy the judge that, on the evidence, there is a real issue about consent that is worth putting to the jury.
Case Insight: There must be evidence to show a belief was reasonable when determining whether or not the defendant held a “reasonable belief in consent”.
In the case of R v Ciccarelli (2011), C went to a house party where X was present. X had consumed alcohol and possibly drugs. According to C, X had made a sexual advance towards him by touching him between his legs and attempting to kiss him. X later fell asleep at C’s house. C climbed into the bed and kissed and cuddled her and touched her with his erect penis from behind. He tried to pull X’s underwear down and climbed on top of her. X woke up and told C to stop, which he did. At trial, the issue was whether he believed she had consented. C accepted that he had touched the complainant sexually. However, he contended that he had a reasonable belief of her consent from her actions at the party earlier in the night. The judge held that sufficient evidence had not been adduced to raise the issue as to reasonable belief in consent, pursuant to section 75 of the Act. C appealed his conviction. The court dismissed the appeal. The court, commenting on section 75 and its application, held that section 75 was a provision relating to matters of evidence. It concerned an evidential presumption of consent, where as a matter of reality the likelihood was that the victim might not have consented. If there was sufficient evidence for a jury to consider, the burden of disproving consent was on the prosecution. Accordingly, some evidence, beyond the fanciful or speculative, had to be adduced as to reasonable belief of consent. It was preposterous to suggest that it was enough for a defendant to give evidence that he believed the complainant was consenting and thereafter, whether he believed or not, for the issue to go before the jury. That was not what section 75 of the Act provided. The issue of a defendant's reasonable belief in a complainant's consent when she was asleep, or in other situations of disadvantage, would be considered by the jury provided that there was evidence that was sufficient to raise that issue. Here, taking C's case at its highest, the reasonableness of his belief that the sleeping victim had consented was based on a single advance she had made when she had been awake at a different place before going to his flat. That was not enough to raise the issue of reasonable belief pursuant to section 75 of the Act.
Conclusive Presumptions About Consent – Section 76
Section 76 of the SOA 2003 provides two irrebuttable presumptions which, if present (and it is proved that the defendant did the relevant act (see section 77)), then it is conclusively presumed that the complainant did not consent, and the defendant did not believe the complainant consented.
The circumstances are:
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Nature and purpose of the act
Deception as to the nature and purpose of the act can be best explained as a situation where the perpetrator lies to the victim about why an act is done or for what purpose it is being done. By way of a simple example, the victim consents to digital penetration by the perpetrator because the perpetrator tells the complainant it is necessary for medical reasons, but it is in fact for their own sexual gratification.
Case Insight: Issue of consent in the case of a rape by deception
In the case of R v Jheeta (2007), D and J had a sexual relationship. After a few months, D started to receive threatening texts and telephone calls and she told J. However, it was actually J who was sending the messages and he pretended to assure her that she would be safe. D eventually decided to involve the police and J said that he would make a complaint for her. Over four years, she received text messages from 'police officers' which, amongst other things, told her that J would arrange for her security at £1,000 per year. These messages were also sent by J. In time, D wanted to end her relationship with J, but as soon as she tried, texts would arrive from 'police officers' saying that J had tried to kill himself, she should take care of him and sleep with him. She received 50 such demands over the years with the threat that if she did not, she would be fined. J admitted that there had been occasions when sexual intercourse had taken place even though D had not given her true consent. Following his conviction for rape (amongst other offences) he appealed on the grounds that the deception was not about the nature or purpose of the relevant act (i.e. there was no deception operating on D about the nature or purpose of the intercourse), so the conclusive presumptions, based on common law, could not be established. Dismissing the appeal, the court stated that section 76(2) was not relevant here but provided helpful guidance on its application. Section 76(2)(a) was relevant only to the comparatively rare cases where a defendant had deliberately deceived D about the nature and purpose of one or other form of intercourse. In rape cases, the 'act' was vaginal, anal or oral intercourse. No conclusive presumptions arose merely because D had been deceived in some way by crooked inducements or lies. Those might well be deceptive and persuasive, but they would rarely go to the nature or purpose of intercourse. Looking to section 74 of the SOA 2003, J had deceived D and had created a fantasy which had pressurised her into having intercourse with him more frequently than she would otherwise have done. She had been deceived as to the situation in which she had found herself. The conclusive presumption in section 76(2)(a) may have had no relevance, but in view of J's admissions and his guilty plea, D had not exercised a free choice or consent for the purposes of section 74 of the Act.
Impersonating a person known personally
Section 76(2)(b) provides for the situation in which the perpetrator impersonates someone known personally to the victim which induces the victim to consent to the act. A basic example of this would be the defendant impersonates the complainant's partner and thereby causes the complainant to consent to the relevant act. However, it is not necessary for the person impersonated to be someone who has previously engaged in sexual activity with the victim. For example, a man could impersonate his twin brother in order to engage in sexual activity with a woman whom he knows would be willing to engage in sexual activity with his brother.
Case Insight: Lack of knowledge that an individual was an undercover police officer when entering into a sexual relationship, did not vitiate the existence of consent.
In the case of R (on the application of Monica) v DPP (2018), P (an undercover police officer) infiltrated a group of environmental activists and entered into a sexual relationship with M (a member of the group). When M became aware of P’s true identity, she claimed that her decision to enter into a relationship with P was based upon her understanding that they shared their core beliefs. The case was referred to the CPS for a prosecutorial decision, seeking charges on the offence of rape, amongst others. The CPS concluded there was insufficient evidence to provide a realistic prospect of conviction and refused to charge. M submitted an application for judicial review of the decision made by the CPS not to prosecute. The court rejected the application for judicial review stating that consent is only vitiated when there has been a deception to identity constituting impersonation or to the nature of the intended sexual act and the CPS lawyer was entitled to reach the conclusion she did with regards to consent by applying current legal principles. The meaning of consent had not been altered by the SOA2003 and therefore, M's argument that the court's considerations should take into account whether deception was sufficiently serious to be relevant to decision making and, whether the deception would be fundamental to a decision when reviewing whether consent was present, was not the correct approach to follow and there exists no supporting authority for that to be the test. Further, the CPS had been entitled to find that the offence of procurement had not been committed by P because he was following the orders of his superiors and he had not created the situation which led to them meeting.
Development of the law – looking to the future
Human behaviour often cannot be strictly reduced into legislative structure and so the legal principles of consent in sexual cases are decided on a case-by-case basis as cases come through. As changes happen in society, such as technological advances, the courts must expand and adapt the principles to provide for new issue which present themselves.
Case Insight: lack of consent to the filming of sexual touching was capable of negating the free exercise of choice to consent to sexual touching for the purposes of section 74
In the case of R v BVA (2025), the court grappled with the issue of whether consenting to being sexually touched whilst asleep but not consenting to it being filmed could, as a matter of law, negate consent under section 74. BVA’s conviction for sexual assault was dismissed when the court held that the judge was correct to conclude that the filming was sufficiently closely connected to the sexual touching that a failure to disclose it was capable in law of negating consent under section 74.
Final Word
This article provides a concise and simple summary of the main statutory principles and judicial precedents in this area but is by no means the full picture in terms of this complex and ever developing legal area.
For further reading, please see the CPS Guidance on Rape and Sexual Offences, the CPS Toolkit for Addressing Consent the College of Policing Latest Changes on Rape and Sexual Offences and the PNLD home page for the latest cases and news in this area.
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