The 2003 Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes. Reasonable belief in consentĭeciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1 - 4). Prior to the 2003 Act there was no statutory definition of consent but the section 74 definition is commonly referred to in pre 2003 Act cases as a guide to how the jury should approach the issue of consent.
Whether he or she was in a position to make that choice freely, and was not constrained in any way.Īssuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question. Whether a complainant had the capacity (i.e. Prosecutors should consider this in two stages. 
Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”.
Persons with a mental disorder who have sexual relations with care workers. Persons with a mental disorder who are induced threatened or deceived. Persons with a mental disorder impeding choice. Children under 18 involved with family members over 18. Children under 18 having sexual relations with persons in a position of trust. Child sexual offences involving children under 16. Inciting or causing a person to engage in sexual activity with a child under 13. Assault by penetration of a child under 13. Only the act itself and the age of the victim/complainant or other criteria need to be proved. In relation to many other offences there is no requirement to prove an absence of consent. And (A) does not reasonably believe that B consents. In relation to these offences, a person (A) is guilty of an offence if (s)he: 
causing a person to engage in sexual activity. The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. Prosecutors are advised to view ‘Consent in Sexual Cases' - which can be accessed via the Prosecution College. Toolkits on consent have been created to assist investigators, prosecutors and advocates when considering issues in relation to consent and evaluating the evidence in a case. It is important to make a distinction between consent and mere submission, acquiescence or compliance. ostensible consent, but it is not true consent in the particular context in which the offending has occurred, for example in cases where a young complainant has been groomed. Sometimes consent is given, or appears to be given, i.e. Freedom to consent in cases involving ‘conditional consent’Ĭonsent should be carefully considered when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Consent in Child Sexual Exploitation cases. Consent to serious harm for sexual gratification. Consent and penetration as a continuing act.
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