The Law of Consent

This Article was written by members of ALP's Amber Light Project which aims to confront misinformation around what constitutes sexual assault, and debunk myths which may exist around this through various initiatives.

It is an image that has been shared thousands of times on social media. A woman sits in a court room, crumpled with tears, her hands pressed to her face. This is Kesha. After alleging she was raped and sexually assaulted by her producer Dr. Luke, she had just been told she would not be released from her contract with him.

While many voiced their support of the singer, some were quick to accuse her of fabricating the story for financial gains and unfortunately, such accusations are not unusual. According to the Symposium of False Allegations of Rape, only 2-8% of reported rape allegations are unfounded, roughly the same statistic as for all other crimes.  However, often when a woman says she has been sexually assaulted, the first instinct for many is to question the allegation or even begin to victim blame.  Could this be because there is not enough of a public understanding of what constitutes rape and sexual assault in the eyes of the law?

A 2010 Havens survey revealed only 77% of young men agree that having sex with someone who has said no is rape. This may, in fact, be the issue.  The other problem with the lack of understanding about the legal definition of sexual assault is that it may be a contributing factor in the poor rates of such crimes being reported: figures gathered by the Ministry of Justice, Office for National Statistics and the Home Office suggest that just 15% of all those who have experienced sexual violence have reported the incident to the police.  One of the reasons for this could be that some victims are unsure if they have actually been sexually assaulted or not.  Or they may be worried they had provoked the attack in someway, despite the fact that a rape cannot be provoked.  These potential explanations are supported by two statistics from Amnesty: that a third of people believe that women who flirt are partially responsible for their rape, and that 37% of people think that a woman is responsible for being raped if she did not say ‘no’ clearly enough.  

While, in 2013, it was established that roughly eleven adults are raped in England and Wales every hour, a 2005 report on the attrition in reported rape cases found that only 5.7% of reported cases ended in a conviction. It was therefore apparent that there was something wrong with the way British domestic legal systems were treating sexual offences. In Scotland, an attempt was made to rectify this by the introduction of the Sexual Offences (Scotland) Act 2009. Prior to this law being introduced, force had to be involved for the act to constitute a rape, a man could not rape another man, and rape could not occur within the confines of marriage. However, today, under the 2009 Act, the definition of statutory rape covers penetration to the vagina, anus, or mouth with a penis without the other’s consent and is irrelevant of marriage status. One thing this means is that while today, a man can rape another man, a woman cannot rape a man, and so she could only be convicted of sexual assault or sexual assault by penetration.

The new legislation also introduced a formal definition of consent as ‘free agreement’ and provides a number of scenarios in which there can be no free agreement.  Some people think that consent boils down to a simple ‘yes’ or ‘no’.  This is wrong as there are many other external factors which influence whether or not a rape has taken place.  These include: being incapable to consent due to alcohol or other substances; the use of violence to force agreement and where there is agreement but the victim is deceived as to the nature or purpose of the act.  The latter would occur in a scenario where sex was conditional on the use of a condom, but the perpetrator then decided not to use one without telling the other person.  The Act also introduced a condition whereby rape can occur where the perpetrator was reckless as to whether there was consent.  There is no precise definition of recklessness in the Act, but in a court case, the prosecution would examine whether certain steps were taken to confirm consent.  This recklessness aspect is also relevant in cases where someone might not have definitively stated ‘no’ to the sexual act, but lack of consent is apparent in their body language, or in other things said, such as ‘not yet’, or ‘that hurts’.

The 2009 legislation also introduced an offence which is particularly relevant for our ‘snapchat generation’.  It criminalises causing the victim to look at a sexual image without their consent, or reasonable belief of their consent.  The perpetrator must also have the intent either to humiliate, distress, or alarm the victim, or to receive sexual gratification.  The definition of sexual images includes pictures of genitals and sexual activities.  It does not matter who is in these pictures and they can even be drawings. 

This Project aims to further the understanding of rape and sexual assault by clarifying exactly what can constitute such a crime and to help combat the myths surrounding these issues.  Unfortunately, many of them still exist today, demonstrated by the fact that a 2010 Havens survey found that one in twenty young men say they would try to have sex with someone who is asleep, something which clearly constitutes rape. The Amber Light Project also believe that, in the 21st century, it is wrong that victims are often still made to feel that it was their fault for being sexually assaulted because of their choice of outfit or the amount of alcohol they consumed. Therefore, they hope to promote conversations about consent and sexual assault so that so that there is a better understanding of the facts, consequently ensuring that victims are given the best possible support.  

In an ideal world, no sexual assaults would take place, but the sad reality is that they do.  To stay safer on a night out, consider using a scheme such as ‘Safe Taxi Aberdeen’.  This service is run in conjunction with the University of Aberdeen, Robert Gordon University and Rainbow City Taxis.  It allows you to get a taxi when you do not have any money, by giving your student ID card to the driver, and then collecting it the next day from RGU union or AUSA, and paying for your taxi at the same time.  If you have been raped or sexually assaulted, there is a Rape and Abuse Support Centre on 112, Crown Street, AB11 6HJ. Their phone number is 01224 590932.

This article was published in The Gaudie in March 2016, the original post can be viewed here;