Why has the Concept of Consent Proven So Difficult to Clarify?
| Author | Bethany Simpson |
| Date | 01 April 2016 |
| Published date | 01 April 2016 |
| DOI | 10.1177/0022018316639104 |
| Subject Matter | Articles |
Article
Why has the Concept of Consent
Proven So Difficult to Clarify?
Bethany Simpson
Northumbria University, UK
Abstract
The concept of consent is a fundamental element within various crimes of different natures. It
plays a particularly important role in the crime of rape under the Sexual Offences Act 2003 and
non-fatal offences under the Offences Against the Person Act 1861. It is within this former Act
that consent was given its first statutory definition under ss. 74, 75 and 76, respectively. This
article explores the history of consent within sexual offences, the issues surrounding its def-
inition and application, and the lack of consistency in criminal law as a whole. It will be sub-
mitted that each of these factors have subsequently led to the consensus that significant clarity
has neither been embraced nor achieved by the integration of a statutory definition.
Keywords
Consent, Capacity, Sexual Offences, Deception, Intoxication
Introduction
This article examines the concept of consent and the issues that surround it. Consent is a recurring
fundamental concept in criminality that the law has struggled to positively define across the spectrum of
criminal law. This being the case, the main focus here will be on the context of sexual offences law, more
specifically the Sexual Offences Act 2003 (the 2003 Act), in which the concept has been defined by
statute. This choice was inspired by recent case law, particularly that in relation to deceptive sex; lack of
academic consensus; and the failure by the government to provide adequate guidance on the issues. Each
of these factors have highlighted the controversial and sensitive nature of the provisions contained within
the 2003 Act.
The first aim of this piece is to explore the relationship between consent and sexual offences and
assess why the core concept of consent and the principles within it present significant difficulties when it
comes to applying the law in practice. The second aim is to propose some ways in which these
difficulties could be resolved.
The first section will delve into the background of the introduction of the 2003 Act and determine
why the government considered it an important measure to give consent a statutory definition. The main
Corresponding author:
Bethany Simpson, Northumbria University, Newcastle Upon Tyne.
E-mail: bethsimpson1993@hotmail.co.uk
The Journal of Criminal Law
2016, Vol. 80(2) 97–123
ªThe Author(s) 2016
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DOI: 10.1177/0022018316639104
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provisions and components within them will then be considered in turn to allow for a broader under-
standing of the issues, which will be discussed in subsequent sections.
The second section will focus on the issues of mistaken sex, deception and when consent is vitiated. The
law in this area will be brought up to date and the means of resolving the issues posed will be considered.
The central argument here will be that the narrowing of s. 76 (which deals with certain deceptive circum-
stances), and the impact it has had on the scope of the general definition under s. 74, has led to too many
opportunities for judicial interpretation, which in turn has impacted on the clarity of the law.
The third part of this work will analyse the effects of intoxicants on a person’s capacity to consent. Both
voluntary and involuntary intoxication will be considered, along with how the relevant provisions apply in
practice. How the law might progress in the future will then be considered. The overarching arguments
here will be that the failure to offer an adequate definition of capacity, the failure to acknowledge the
varying levels of intoxication and the vast opportunity for judicial interpretation and jury discretion have
each negatively affected the clarity and comprehensiveness that the government hoped for.
The final element of this article will compare the application of the concept of consent between sexual
offences and non-sexual offences and address the discrepancies that exist within them. The main
argument here will be that the divergence of the application of consent, both within and between
different categories of offences, has had a negative impact on clarifying the concept, not only within
sexual offences but within criminal law as a whole.
Overall, the 2003 Act has consolidated much of the earlier law and, on the face of it, appears to offer a
great deal of clarity. However, on further analysis, the provisions are somewhat disappointing and still
leave the jury with considerable amounts of discretion. Although the Act offers greater clarity than that
under the previous common law rules, the enactment of the definition has regrettably failed to deliver the
desired clarity that was expected.
Consent and Sexual Offences
The Introduction of the Sexual Offences Act 2003
At the beginning of the 21st century the law relating to sexual offences, namely that contained in the
Sexual Offences Act 1956 (the 1956 Act), was understood to be ‘archaic, incoherent and discrimina-
tory’.
1
Although this was not a universally held view, it had become increasingly apparent that the Act
was no longer sufficiently effective when being applied in a modern day context. The lack of adequate
protection for the vulnerable and clear lack of respect for the sexual autonomy of those with the capacity
to make informed decisions about their sexual behaviour demonstrated just how scrupulously the Act
failed to reflect the changing morality and prevailing sexual attitudes and practices of the new era.
Moreover, a number of essential terms which were contained in the Act, including ‘consent’ and
‘capacity’, were poorly defined, where defined at all. This resulted in a fundamental review of sex
offences by the Home Office in the report Setting th e Boundaries,
2
which subsequently led to the
government White Paper, Protecting the Public.
3
Following this the 2003 Act was enacted with the aim of modernising and strengthening the law by
being both clearer and more coherent in nature than any of the previous sexual offences legislation. The
Act came into force on 1 May 2004 and was considered the most radical reform made to the law relating
to sexual offences ever undertaken in England and Wales. In the last decade, however, it has become
ever more apparent that whilst trying to achieve its aims the 2003 Act has created numerous difficulties,
both of a significant and substantial nature.
1. HL Deb 13 February 2003, vol. 644, col. 771. Described by Lord Falconer when introducing the Sexual Offences Bill.
2. Home Office, Setting the Boundaries: Reforming the Law on Sex Offences, Vol. I (Home Office: London, 2000).
3. Home Office, Protecting the Public: Strengthening Protection against Sex Offenders and Reforming the Law on Sexual
Offences, White Paper, Cm 5668 (2002).
98 The Journal of Criminal Law 80(2)
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