Consent and the Law: Prosecuting A Rape Charge
Consent is one of the most important concepts in criminal law, particularly in cases involving allegations of sexual offences. In the UK, the law provides a strict framework to define what legal consent means, who is legally capable of giving it, and under what circumstances it may be challenged. For individuals accused of rape, as well as for complainants seeking justice, understanding the boundaries of sexual consent, the age of consent UK, and issues such as informed consent and intoxication is critical.
Harewood Law have explained the legal parameters of consent below.
The Legal Definition of Consent
The Sexual Offences Act 2003 provides the modern definition of legal consent in the UK. Section 74 states:
A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.
This definition has three key elements:
Agreement by choice: the decision must be voluntary.
Freedom: there must be no coercion, manipulation, intimidation, or undue pressure.
Capacity: the person must have the mental ability, based on age and understanding, to decide whether to engage in sexual activity.
Consent is not a one time event. It can be withdrawn at any point, and sexual activity after consent is revoked is unlawful.
Age of Consent UK
The age of consent UK is a critical legal threshold:
In England, Wales, Scotland, and Northern Ireland, the age of consent for sexual activity is 16, regardless of gender or sexual orientation.
Sexual activity involving anyone under 16 is unlawful, even if the minor appears to consent, and is treated differently depending on their exact age and the circumstances
Children Under 13
Children aged 12 or under are legally deemed incapable of giving consent. Sexual activity with a child in this age group is criminalised under separate, high penalty offences (often referred to as statutory rape UK) and do not require proof of non consent, it is automatically an offence.
Children Aged 13–15
When the individual is aged between 13 and 15, consent remains legally irrelevant, but offences are categorised differently:
Under Section 9 of the Sexual Offences Act 2003, if someone 18 or over engages in sexual activity with a 13–15 year old, even if they claim to have consent, that’s still criminal if the perpetrator knew, or failed to reasonably believe, the victim was 16 or over.
Defences like ‘reasonable belief’ in the minor being 16 can apply, but not if the child is under 13
Intoxication and Consent
While not specifically detailed in the CPS Chapter 6, the capacity element covers impairment due to intoxication:
If someone is intoxicated to the point that they lack the capacity to consent, any sexual activity is non consensual under the law.
This ties into broader definitions of sexual consent, which must be voluntary, informed, and made with understanding.
How a Rape Charge Presents in Court
Under Section 1 of the Sexual Offences Act 2003, rape is defined as:
Intentional penetration (vagina, anus, or mouth) with a penis;
The victim does not consent; and
The defendant does not reasonably believe the victim consents.
To prosecute, Crown prosecutors rely on CPS guidance, including Chapter 6: Consent, and toolkits on consent for clarity in evaluating evidence. Courts will consider:
Credibility and clarity of the victim’s account.
Whether any Section 75 or 76 conditions apply (which create legal presumptions of non consent such as presence of threats, incapacitation, or abuse of position).
Any argument from the defence that there was a ‘reasonable belief’ in consent.
Can Consent Be Used as a Defence?
Yes, with limitations:
The main defence in rape cases is that the defendant reasonably believed the complainant consented. This must be objectively reasonable given all circumstances.
Consent as a defence is not accepted if the complainant lacked capacity or freedom (for instance, due to age, intoxication, or coercion).
For statutory rape UK cases (below age thresholds), consent is irrelevant, so it cannot be used as a defence in cases involving children under 16 (let alone under 13).
Victim Protection in Sexual Assault Allegations
The UK legal framework includes multiple protections for victims once sexual offences are alleged:
From the outset, complainants aren’t required to ‘prove’ non consent, the burden is on the prosecution to establish it, and on the defendant to argue reasonable belief.
There are enhanced procedural protections, such as anonymity, screens in court, and special measures to prevent retraumatisation during testimony.
CPS toolkits and training ensure that victims are handled sensitively, with recognition of factors like intoxication, trauma, or coercion.
The new “Romeo and Juliet” provisions (currently moving through the Crime and Policing Bill) propose that consensual sexual activity between near aged teenagers should not automatically require professional reporting, even though UK law deems sexual activity under 16 illegal, so long as there’s no harm or coercion
How Are Rape Cases Prosecuted?
The Crown Prosecution Service (CPS) is responsible for prosecuting criminal cases in England and Wales. When a rape allegation is reported, the police investigate and gather evidence. If they believe there is sufficient evidence, the case is referred to the CPS.The CPS applies a two stage legal test:
Sufficient evidence: Is there enough evidence to provide a realistic prospect of conviction?
Public interest: Is it in the public interest to prosecute the case?
Only if both criteria are met will the CPS decide to charge the accused.
Rape and serious sexual offences are among the most complex cases the CPS prosecutes. These cases often involve sensitive issues, such as trauma, memory recall, and the dynamics of consent, making them particularly challenging.
Seeking Legal Councel in a Rape Case
The law around consent and rape in the UK is complex but essential in protecting both the vulnerable and those accused of serious crimes. Understanding the boundaries of sexual consent, the implications of the age of consent UK, and when informed consent is required is central to prosecuting or defending a rape charge.
If you are involved in a case concerning rape or sexual assault, seeking immediate, expert advice from Harewood Law is the most important step you can take.
Our aim is to give every person a chance to fight for justice, as the law allows. We make sure you have the most experienced criminal defence team in your corner to build a robust defence, and provide legal advice throughout the duration of your case.
Contact us today, we work on both privately funded and serious Legal Aid cases across Leeds, Bradford, Halifax, Wakefield, Huddersfield, Keighley and across West Yorkshire and the UK.
0333 3448377 | info@harewoodlaw.com