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Sexual activity without consent is when someone engages in sexual activity with another person without their permission. People under the age of 16 cannot consent to sexual activity in England and Wales.
If you have been accused of sexual assault, please contact us at Ashmans Sexual Offence Solicitors. We represent client across England and Wales. Our criminal defence solicitors understand the stigma attached to sexual offences. We will do everything we can to help you.
The issue of consent
Consent is when someone agrees to engage in sexual activity. Agreement can be expressed verbally or implied through their behaviour.
However, the individual must not only agree – they must do so freely AND have the capacity to consent. This means that someone who is pressured into agreeing to sexual activity has not actually given their consent, as they have not done so freely. Similarly, someone who agrees to sexual activity while intoxicated or cognitively impaired may not have consented, if they do not have full mental capacity.
The age of consent
Age is also an important factor when it comes to sexual consent. The age of consent in England and Wales is 16. This means that people under the age of 16 cannot ever give their consent to engage in sexual activity, even if they express a differing opinion.
The age limit is raised to 18 where the other party is in a position of trust, such as a teacher. So, a teacher could not legally have sexual relations with a pupil who is under the age of 18, even if the relationship is considered consensual between the two parties.
Non-consensual sexual offences
Engaging in any type of sexual activity without the other party’s consent is a criminal offence in England and Wales. The two most common types of non-consensual sexual offences are:
- Sexual assault
- Causing someone to engage in sexual activity without consent
Sexual assault is when the defendant intentionally touches the complainant in a sexual manner, but the complainant does not consent to this touching (and the defendant does not reasonably believe that the complainant has consented). Sexual assault covers a wide range of actions including groping, stroking, kissing and penetration. If the action was intended for sexual gratification – and consent was not provided – then charges may be laid.
Causing someone to engage in sexual activity without consent is when the defendant forces the complainant to engage in sexual activity, but the complainant does not consent to this activity (and the defendant does not reasonably believe that the complainant has consented). The complainant may be forced to engage in sexual activity with the defendant, with another person or alone (for example, if they are forced to remove their clothes). The complainant may allege that the defendant used threats or violence to cause them to engage in sexual activity.
What does sexual mean?
For there to have been an incident of sexual assault, the touching must have been ‘sexual’. What is considered sexual depends on the circumstances. Some acts – such as intercourse – are sexual by their very nature. Others are more ambiguous. For example, touching a woman’s breasts as part of a medical examination is not sexual. However, it might be deemed sexual in a nightclub or other context. The test, therefore, is whether the defendant was motivated by sexual gratification.
This was relevant in a case involving a man who kissed a woman on a train. They did not know each other, but the defendant said that he overheard people mocking the complainant and wanted to make her feel better. He was charged with sexual assault, but argued at trial that his motivation was not sexual. The jury accepted that he did not intend the kiss to be sexual and he was acquitted.
Did the complainant consent?
Lots of sexual offence cases relate to the issue of consent. The person pursuing charges (called the complainant) says that they did not consent to the sexual activity. On the other hand, the person defending the charges (called the defendant) says that the sexual activity was entirely consensual. Or, it could be that the complainant was under the age of consent, and therefore could not legally agree to the sexual activity in question.
If the case goes to court, then they key issue is: did the defendant reasonably believe that the complainant consented to the sexual activity? If there was a reasonable belief, then an offence has not been committed and the defendant must be found not guilty. ‘Reasonable belief’ means that the defendant genuinely thought the sexual activity was consensual, and had good reason to hold this belief.
However, there are certain scenarios where the complainant cannot have consented, regardless of what either party said, did or believed. This includes where:
- The defendant deceived the complainant as to his/her identity
- The defendant gave the complainant a substance without their knowledge or consent that had the effect over overpowering him/her
- The complainant is under the age of 16
Evidence in sexual offence cases
The court’s decision will hinge upon the circumstances that surround the incident in question. Various factors can be taken into account, such as what was said, what happened, and the communication to/from the parties before and after the alleged assault. That is why evidence is particularly crucial to sexual offence cases, especially witness testimony. Text messages, email correspondence and forensic evidence may also be produced in court by either the defence or the prosecution.
Have you been accused of sexual activity without consent?
For some, being accused of sexual offence comes as a complete shock. You might have wholeheartedly believed that the sexual activity was consensual. If this is the case, then we can help you prove that the complainant did in fact consent, or that you held a reasonable belief that they had consented. If we can establish either point then you must be acquitted by a court. We might even be able to get the charges against you dropped before the case reaches court, if we can show the Crown Prosecution Service (CPS) that there is no substance to the allegations.
We appreciate that this is a worrying time for you, especially given the stigma attached to sexual offenders. Our criminal defence solicitors have represented people in a similar situation to yours. We can help you too.
Related: What is sexomnia ?
solicitors – England & Wales
If you need a criminal defence lawyer, please do not hesitate to conduct as at Ashmans Solicitors.
Call us on 0333 009 6275. We are available 24 hours a day, 7 days a week.