Consent in the criminal law
A thorough review of the law of consent to provide greater predictability and to modernise the criminal law in England and Wales.
Problem (Back to top)
The Law Commission has looked at consent in the criminal law before, publishing two consultation papers in the 1990s, but ultimately no final report.
In the two-and-a-half decades since that work, there have been developments in both statute and the common law. The Sexual Offences Act 2003 made provision for consent in the context of sexual offences, which included a broad test (section 74: “agrees by choice, and has the freedom and capacity to make that choice”), as well as rebuttable and conclusive presumptions as to the absence of consent (sections 75 and 76 respectively). There have also been statutory developments in the context of consent to harm. Taken together, these developments have neither simplified nor clarified the law.
Internationally, there have been notable developments in consent laws, particularly in the context of sexual offences. For example, in 2021, New South Wales passed the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, which included implementation of the recommendations of the New South Wales Law Reform Commission in its report on Consent in relation to sexual offences. The Supreme Court of Canada has now held that “affirmatively communicated consent must be given for each and every sexual act… [n]othing less that positive affirmation is required.”
The absence of consent provides much of the justificatory force both for offences against the person and for many of the sexual offences. Although the subject of extensive judicial consideration and legislative reform over the last 40 years, the law remains unsettled, incoherent, and unpredictable. Faced with unusual fact patterns, the courts have, for example, struggled to achieve a consistent answer to questions about the effect of deceit on consent. Social attitudes have also continued to evolve, though rarely do they pull in one direction, as demonstrated by the differing approaches to consent as a defence taken by some stakeholders in the contexts of body modification on the one hand and “rough sex” on the other.
Project (Back to top)
A thorough review of the law of consent will provide the opportunity to place consent on conceptually surer foundations and so to resolve existing inconsistencies, to provide greater predictability, and to modernise the criminal law in England and Wales.
This project forms part of the Law Commission’s 14th Programme of Law Reform.
Next steps
The Law Commission will commence work on the project as soon as resources allow.
Further steps and their timings will be confirmed in due course.
Documents (Back to top)
There are no documents published as part of this project currently.
Updates (Back to top)
There are no updates on this project currently.
Contact (Back to top)
Contact us if you have any queries about this project.