Consent in Rape Cases: How the Law Defines It

Understanding what the law means by consent is central to any rape allegation. Consent is often misunderstood, and cases can be highly complex, particularly where alcohol, ongoing relationships or differing recollections are involved. 

This article explains how consent is defined in law, when it must exist, what can invalidate it, and how the courts approach reasonable belief in consent. 

What is Consent? 

Before the Sexual Offences Act 2003 came into force, there was no clear legal definition of consent. Juries were simply asked to apply the word’s ordinary meaning. 

That changed with the introduction of section 74 of the Sexual Offences Act 2003, which provides the statutory definition: 

A person consents if they agree by choice and have the freedom and capacity to make that choice. 

This definition underpins all rape cases and highlights two essential elements: 

• Freedom to choose 
• Capacity to choose 

If either is missing, consent may not be present. 

When Must Consent Exist? 

Consent must exist at the moment of penetration. 

The courts have made clear that consent is specific to: 

• The particular act 
• The particular person 
• The particular time and place 

As Baroness Hale explained in R v Cooper, consent is not general or ongoing. Agreement on one occasion does not automatically apply to another. 

Baroness Hale stated:  

“One consents to this act of sex with this person at this time and in this place.” 

What Can Negate Consent? 

Intoxication and Capacity 

Alcohol or drugs can affect a person’s capacity to consent. Someone who is unconscious cannot consent. 

If there is dispute as to whether a complainant was conscious or not, the jury can be told that, if they are sure the complainant was unconscious then, they did not consent. 

If the jury thinks the complainant may have been conscious, then they might have consented and capacity is not engaged. 

However, the law recognises that capacity may be lost before unconsciousness. In R v Bree, the court confirmed that a person may reach a point where they are too intoxicated to make a choice, even if they appear conscious. 

The jury will consider: 

• The level of intoxication 

The degree of awareness or coherence 

• Whether the complainant was capable of making a choice 

R v Kamki provided the following guidance: 

1. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice 
2. When a person is unconscious, there is no such freedom or capacity to choose 
3. Where a person has not reached a state of unconsciousness and experiences some degree of consciousness, further consideration must be applied 
4. A person can still have the capacity to make a choice and have sex even when they had a lot to drink 
5. Alcohol can make people less inhibited than when they are sober and everybody has the choice whether or not to have sex 
6. If through drink, a woman has temporarily lost the capacity to chose to have sexual intercourse, she would not be consenting 
7. Before a complete loss of consciousness arises, a state of incapacity to consent can nevertheless be reached. Consideration has to be given to the degree of consciousness or otherwise in order to determine the issue of capacity. 
8. …..the jury would have to consider the evidence of [W] to determine what he state of consciousness or unconsciousness was and to determine what effect this would have on her capacity to consent. 
9. If it is determined that the complainant did have the capacity to make a choice, it would then have to be considered whether she did or may have consented to sexual intercourse. 

Being drunk does not automatically remove capacity. Each case turns on its own facts. 

Where sexual offences are alleged to have occurred against the background of an ongoing or recent sexual relationship, the court will direct the jury on the relevance of that background. 

Coercion 

Force does not have to be used for consent to be invalid. 

If circumstances overbear a person’s free will, consent may not have been given. Pressure, fear or threats can all undermine freedom of choice. 

Deception 

Some types of deception are so serious that the law presumes there was no consent.  

These are set out in section 76 of the Sexual Offences Act 2003 and include situations where: 

• The complainant was intentionally deceived about the nature or purpose of the act 
• The defendant impersonated someone known personally to the complainant 

Where section 76 applies, the lack of consent is conclusively presumed. 

Not all lies will meet this threshold. The courts have made clear that deception about matters such as wealth or status will not usually negate consent. 

Common examples considered by the courts include: 

STI transmission 

Failure to disclose HIV status does not automatically amount to rape (R v B), as it is treated as an omission rather than a direct deception under section 76. 

Stealthing 

The non‑consensual removal of a condom is not covered by section 76 but is highly relevant to section 74. If consent was conditional on condom use, removing it may vitiate consent. 

Deception about gender 

In R v McNally, deception as to gender was found capable of negating consent under section 74. 

Secret filming 

In R v BVA, secretly filming sexual activity without consent, particularly when the complainant was asleep, was held to invalidate consent. 

Evidential Presumptions About Consent (Section 75) 

Section 75 sets out circumstances where consent is presumed to be absent, unless there is evidence to the contrary.  

These include situations where the complainant: 

• was asleep or unconscious 
• was subjected to violence or feared immediate violence 
• was unlawfully detained 
• was unable to communicate consent due to disability 
• had been given a substance without consent that could overpower them 

Unlike section 76, these presumptions are not conclusive and can be challenged with evidence. 

Can You Consent While Asleep? 

A person who is asleep cannot consent. 

If the prosecution say the complainant was asleep and the defence say they were awake, the jury will be directed that if they are sure the complainant was asleep, consent was not present. 

Cases become particularly complex where a defendant argues that the complainant had previously agreed to sexual activity while asleep. These cases depend heavily on the specific evidence and are carefully scrutinised by the court. 

Reasonable Belief in Consent 

Rape requires proof not only of the act, but also that the defendant did not reasonably believe the complainant was consenting. 

The jury will ask: 

1. Did the defendant genuinely believe the complainant consented? 
2. If so, was that belief reasonable? 

Only if the answer to question 1 is yes, then do you move on to consider question 2. 

If a belief is formed because the defendant was intoxicated, it will not be considered reasonable. 

Neurodiversity and Consent 

In R v Jacobs, the court confirmed that autism or other neurodivergent conditions may be relevant when assessing belief in consent. 

Unlike intoxication, neurodiversity may be relevant to: 

• whether the defendant genuinely believed there was consent 
• and, in certain circumstances, whether that belief was reasonable 

Each case will depend on medical evidence and the particular facts. 

Frequently Asked Questions about Consent in Rape Cases