Petition Implement Affirmative Consent for Sexual Activity

The law in this important and sensitive area is kept under review. This Government is committed to the protection of people from sexual abuse and exploitation in all its forms, and we have taken a robust and zero tolerance approach to rape and sexual assault.

Since 2010, the average custodial sentence length for adult rape has increased over 40% from six and a half years to nine and a half years. We have also introduced a number of changes to release points since 2020 to ensure rapists and other serious sexual offenders who receive a standard determinate sentence of over 4 years will be automatically released at the two thirds point of their sentence instead of halfway. We are going further in the Sentencing Bill, which will require all serious sexual offenders to spend 100% of their custodial term in prison.

The Sexual Offences Act 2003 was introduced following a full and extensive consultation and significantly modernised and strengthened the laws on sexual offences in England and Wales.

All of the measures in the Act were designed to provide a clear and effective set of laws to deter and punish abusers, giving the police and the courts the up-to-date offences, they need to do their job, and ensuring that children and adults have the strongest possible protection under the law.

The 2003 Act provides rightly robust sentences that reflect the seriousness of this offending, including a maximum penalty of life imprisonment for the most serious offences, including rape.

The independent Review “Setting the Boundaries”, commissioned by the then Government, recommended that consent should mean free agreement, recognising that such agreement to sexual activity is not necessarily verbal but must be understood by both parties.

The issues surrounding consent to sexual activity were considered in great detail both in the consultation which was published prior to the introduction of the 2003 Act and, during the passage of that legislation through Parliament.

Consent is a factor in a range of sexual offences. Section 74 of the 2003 Act provides that the purposes of these offences, “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”, and in deciding whether or not the complainant had the freedom and capacity to make a choice, all relevant circumstances will be taken into account.

With some sexual offences, the Prosecution will need to prove that the complainant did not consent and that the defendant did not reasonably believe that the complainant consented. Whether belief as to consent is reasonable is determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim was consenting.

Sections 75 and 76 of the 2003 Act supplement the general definition of consent set out in section 74 for the purposes of proceedings for an offence under section 1, 2, 3 or 4 of the Act. Section 75 provides that where it is proved that the defendant did the relevant act (as defined by section 77), and that any of an exhaustive list of circumstances existed and the defendant knew that they existed, this will raise a presumption that the complainant did not consent, and that the defendant did not reasonably believe that the complainant consented. The circumstances set out in in section 75 include, for example, where any person was, at the time of relevant act or immediately before it began, using violence against the complainant. If the defendant can adduce sufficient evidence to raise an issue as to whether the complainant consented (or the defendant had a reasonable belief in consent), then the Court will make a determination on that point in the usual way, but if they cannot then the defendant will be convicted.

Section 76 of the 2003 Act provides that where it is proved that the defendant did the relevant act (as defined by section 77), and that one of two circumstances set out in section 76 existed, this will raise a conclusive presumption that the complainant did not consent, and that the defendant did not believe that the complainant consented. Unlike section 75, the defendant is not able to adduce evidence to rebut this presumption, so if section 76 applies, the defendant will automatically be convicted.

The law in this area is long established and well understood by the courts, police, practitioners and the public. We therefore have no plans to amend the definition of “consent” as suggested by this e-petition.

Ministry of Justice