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We all have the right to not want sex or any other kind of sexual activity – for example, kissing, sexual touching or performing a sexual act.
We also all have the right to change our minds at any time. Or to consent to doing one sexual thing with someone but not another.
Without consent, any kind of sexual activity is sexual violence.
Many of the myths surrounding consent and sexual violence can make victims and survivors feel as though they are somehow to blame. It can also make them feel that what happened to them wasn’t ‘real’ sexual violence.
BUT, it doesn’t matter if someone doesn't have visible injuries or if they didn't scream, try to run away or fight. It also doesn't matter what they were wearing or what interaction happened beforehand. Or if they experienced feelings of arousal. Or if they knew the perpetrator.
If a person doesn’t consent to sexual activity of any kind then it is always sexual violence. And 100% of the blame lies with the perpetrator or perpetrators.
With all the myths surrounding sexual violence, however, working out what consent looks like in real life can sometimes feel confusing.
So, let’s break it down a bit…
The Sexual Offences Act 2003 says that someone consents to sexual activity if they:
- Agree by choice and
- Have both the freedom and capacity to make that choice.
If someone says ‘no’ to any kind of sexual activity, they are not agreeing to it.
But, if someone doesn't say ‘no’ out loud, that doesn’t automatically mean that they have agreed to it either.
Someone doesn’t have the freedom and capacity to agree to sexual activity by choice if:
- They are asleep or unconscious.
- They are drunk or ‘on’ drugs.
- They have been ‘spiked’.
- They are too young.
- They have a mental health disorder or illness that means they are unable to make a choice.
- They are being pressured, bullied, manipulated, tricked or scared into saying 'yes’.
- The other person is using physical force against them.
If someone's not sure whether you are giving your consent for something sexual, they should check with you. If they can see or suspect you're not 100% comfortable or happy with what's happening between you, they should stop.
Consent looks like:
- Enthusiastically saying ‘yes!’.
- Talking to the other person about what you do and don't want, and listening to them in return.
- Checking in with the other person – for example, asking ‘is this okay?’, ‘do you want to slow down?’ or ‘do you want to stop?’.
- Respecting someone’s choice if they say ‘no’. And never trying to change their mind or put pressure on them.
Consent is not like a permit or voucher that we can use up until its expiry date or at any point in the future. The person who really wanted to have sex with us last night might not want to have sex with us this morning and that’s 100% their right.
It also makes no difference if you're married to someone or in a relationship with them. You still need to get their consent. Every. Single Time.
Consent does not look like:
- Feeling like you have to agree to sex or other sexual activity because you’re worried about the other person’s reaction if you say ‘no’.
- Someone having sex with you or touching you in a sexual manner when you’re asleep or unconscious.
- Someone continuing with sexual activity despite your non-verbal cues that you don’t want it to continue or you’re not sure – for example, if you pull away, freeze or seem uncomfortable.
- Someone assuming that you want to have sex or take part in other sexual activity because of your actions or what you’re wearing – for example, flirting, accepting a drink, wearing a short skirt.
- Someone assuming that you want to have sex or take part in other sexual activity with them because you’ve had sex or taken part in other sexual activity with them before.
- Someone assuming that you want to take part in one type of sexual activity because you wanted to take part in another.
- Someone removing a condom during sex after you only agreed to have sex with one (what is known as 'stealthing').
Please know, however, that these are just a few examples of what consent doesn’t look like.
If you didn’t want something to happen then you didn’t give your consent. You also didn’t give your consent if you weren’t capable of deciding whether or not you wanted it – for example, if you were a child or if you were drunk.
And if there was no consent then it was sexual violence.
This means that sexual activity between two or more people is always unlawful if at least one of the people is under the age of 16.
It doesn't matter if:
- All those involved are the same age or very close in age.
- Those under the age of 16 have given their consent (in line with the definition above).
However, not everyone who does something unlawful is charged with a crime and taken to court (prosecuted). It is up to prosecutors to decide whether it is in the 'public interest' for this to happen – and, when making this decision, they have to take certain factors into account.
The age of consent exists to protect children and young people – not to turn them into criminals for no good reason or to cause them unnecessary harm.
That's why, when deciding whether or not to prosecute someone who takes part in sexual activity with a person under the age of 16, prosecutors are supposed to consider lots of different factors. These include:
- How close in age and maturity levels those involved are.
- The relationship of those involved.
- Whether the person under 16 consented.
- Whether the sexual activity was a normal part of the process of becoming an adult.
- Whether the person under 16 was aged 12 or under.
You can find out more about the other factors here.
Under English and Welsh law, children and young people under the age of 13 are seen as being less capable of consenting than those aged 13 and over.
That's why the Sexual Offences Act 2003 lists different offences for cases involving children and young people aged 12 and under – and why it's a factor for prosecutors to consider when they are deciding whether or not to prosecute someone.
16 and 17-year-olds
Although the age of consent is 16, the law has some extra protections in place for young people aged 16 and 17.
For example, it is illegal to:
- Take a photo or video of someone aged 18 or under engaging in sexual activity.
- Pay for sexual services from someone under 18.
- Take part in sexual activity with someone under 18 if you are in a position of trust – for example, if you are their teacher, social worker, doctor or care worker.
- Take part in sexual activity with someone under 18 if they are a member of your family.