Understanding Consent in Law and Life

Written into law, and into the basic understanding of rights and freedoms, consent is a highly misunderstood and often overlooked subject matter. Commonly spoken of in legal cases as if it gets to be discarded simply because ‘no’ was not spoken in the right way or not spoken at all, understanding consent is the first step in ensuring it gets respected and not ignored. Understanding consent is paramount to understanding what rights you have and what rights every human being has regarding their body, their property, and their life.


While consent is integral to many areas of law, whether it be medical, financial, contractual, territorial, or otherwise, one of the more commonly discussed, yet still misunderstood, areas of consent, especially on university campuses, is sexual consent. The Higher Education Policy’s 2021 report noted that while a majority of student’s self-reported that they had confidence in their understanding of what it means to “communicate consent clearly”, there were still around 10% who were “not very confident” or “not confident at all”.[1] More indicative of an issue with the understanding of consent is that the students who were “very confident” about understanding consent when alcohol was involved was only 30%.[2]

In the UK, under section 74 of the Sexual Offences Act 2003 “a person consents if he agrees by choice and has the freedom and capacity to make that choice.”[3] Meaning there must be choice, no coercion or leading actions that forced the choice and ability to make that choice (of sound mind, not under the influence of any substance capable of impacting mental capacity, awake, etc). If any of those elements is missing there is no consent, if any of those elements go missing even after there has been consent, there is no longer consent. Despite there being a legal definition, understanding that definition in every circumstance has proven to be enough of a difficulty that many Universities, both in the UK and in other countries are started offering consent information, policies, and courses[4] [5] [6] [7] [8]. Some of the key points about consent identified by the University consent courses are as follows:

  1. Consent is reversible. Once given it can be taken away at any point.

  2. Consent must be freely given.

  3. Lack of “no” does not mean, “yes”.

  4. It is important to understand that you can say “no” and to learn how to say “no”, as it can be tough.

  5. It is also important to learn how to accept “no”, as no one is entitled to anyone else’s consent.

  6. Cyber-consent follows the same requirements; there must be a choice, freedom to make the choice and ability to make the choice. Consent can still be reversed if it was given online.


Regarding sexual consent, if lack of consent is being disrespected or ignored it is a crime. There are University and Community Resources to assist with how to approach situations involving consent and how to get out of ones where it is not being acknowledged. Some of the informational resources suggested by universities are Rape Crisis England and Wales[9], The Mix[10], and Brook[11]. For useful videos on understanding consent there is Tea and Consent[12] and Cycling and Consent[13]. Within this blog post are references to various informational resources on consent, from the UK, the USA, and Canada, many from higher education institutes, and informed by or created by students. These are in no way exhaustive; they are merely examples of different ways of approaching and understanding consent, specifically in universities. Consent is an important concept to understand in any societal interactions, and everyone has rights regarding their consent, both morally speaking and in law.


 

[1] Nick Hillman, ‘Sex and Relationships Among Students: Summary Report’ (2021) HEPI Policy Note 30 < https://www.hepi.ac.uk/wp-content/uploads/2021/04/Sex-and-Relationships-Among-Students-Summary-Report.pdf> accessed 13 February 2022. [2] ibid 12. [3] Sexual Offences Act 2003 (SOA 2003) s 74. [4] Abby Young-Powell, ‘Do Students need classes on sexual consent?’ (2014) The Guardian <https://www.theguardian.com/education/2014/jun/05/sexual-consent-classes-for-university-students> accessed 13 February 2022. [5] University of Nottingham, ‘Let’s be clear on consent’ (2021) <https://www.nottingham.ac.uk/currentstudents/healthyu/lets-be-clear-on-consent.aspx> accessed 13 February 2022. [6] Durham University, ‘Consent Matters’ (<https://reportandsupport.durham.ac.uk/campaigns/consent-matters> accessed 13 February 2022. [7] Simon Fraser University, ‘Consent Matters’ (2021) Sexual Violence Support & Prevention <https://www.sfu.ca/sexual-violence/education-prevention/what-is-consent.html> accessed 13 February 2022. [8] The State University of New York, ‘Definition of Affirmative Consent’ (2015) Sexual Violence Prevention Workgroup <https://system.suny.edu/sexual-violence-prevention-workgroup/policies/affirmative-consent/> accessed 13 February 2022. [9] Rape Crisis England & Wales <https://rapecrisis.org.uk/get-informed/about-sexual-violence/sexual-consent/> accessed 13 February 2022. [10] The Mix: Essential support for under 25s <https://www.themix.org.uk/sex-and-relationships/consent/drunk-sex-18668.html> accessed 13 February 2022. [11] Brook Young People <https://www.brook.org.uk/your-life/sex-and-consent/?gclid=EAIaIQobChMI79as1azW8QIVj77tCh2mMQjDEAAYAiAAEgJPGvD_BwE> accessed 13 February 2022. [12] Blue Seat Studios ‘Tea and Consent’ (2015) Thames Valley Police <https://www.youtube.com/watch?v=pZwvrxVavnQ> accessed 13 February 2022. [13] ‘Cycling through Consent’ (2015) Western University <https://www.youtube.com/watch?v=-JwlKjRaUaw> accessed 13 February 2022.

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