This is an edited transcript of Esther’s talk at the Rethinking Consent webinar on Sunday 25 February 2024. A recording of the event is available on our YouTube channel.

Different approaches to consent to sex

There are a variety of different approaches to consent to sex across different jurisdictions. Some jurisdictions don’t define what consent is but may have a legal age of consent and particular conditions that they specify about an adult’s capacity to consent. 

There are two main ways that rape and sexual assault are defined in the law:

• Consent-based laws – Based on adults with capacity not giving consent.
• Coercion-based laws – Based on adults being forced to have sex through violence or threats.

The scale of the difference of opinion on which model is preferable was illustrated recently during discussions about the inclusion of a consent-based definition of rape and sexual assault in the EU directive on violence against women. It turned out be so contentious that rape and sexual assault were removed from the directive altogether because the member states couldn’t reach agreement.

Sexual offences in England & Wales

I’ll mainly be speaking about England and Wales, which has consent-based laws for rape and sexual assault, but this is subject to the defendant’s “reasonable belief” that the complainant consented.

The offences of rape, assault by penetration, sexual assault, and causing another person to engage in sexual activity (Sections 1-4 of the Sexual Offences Act 2003) require the prosecution to prove beyond reasonable doubt that the defendant did the act and that:

• the defendant acted intentionally;
• that the complainant did not consent to the act; and
• that the defendant did not reasonably believe that the complainant consented.

When a jury is working out whether a belief in consent is reasonable, they have to consider all the circumstances, including any steps the defendant took to find out whether the complainant consented. However, there is no requirement that the complainant demonstrated or communicated to the defendant a lack of consent.

The statutory definition of consent

This is our statutory definition of consent (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.”

The “reasonable belief” test

The test of “reasonable belief” is a subjective test with an objective element. The Crown Prosecution Service, which is responsible for the main state prosecutions, recommends that prosecutors deal with this by asking two questions:

• Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent. (This is the subjective element of the test.)
• If so, did the suspect reasonably believe it? It will be for the jury to decide if his or her belief was reasonable. (This is the objective element.)

This requires evidence to be put before the jury about lack of consent. That evidence will depend on the circumstances. It might be that the complainant was incapable of consenting or knowing what was happening because of the influence of drink or drugs, for example.

In working out whether the belief was reasonable, the jury also has to have regard for all the circumstances, including any steps the suspect might have taken to establish whether the complainant consented. These could include the suspect’s attributes such as disability or extreme youth – but wouldn’t include whether the suspect has any particular fetishes.

Conclusive presumptions about consent

The statute sets out presumptions about consent. These are circumstances where a defendant would not be able to use consent as a defence or might not be able to.

This is important because they often occur in porn films and porn viewers may take this to mean that what was filmed wasn’t rape and wouldn’t be considered rape if they acted out what they saw in the film.

When the following occur, it’s conclusively presumed that the complainant didn’t consent, and that the defendant didn’t believe that the complainant consented:

• If it’s proved that a defendant did the act, and that
• the defendant intentionally deceived the complainant about the nature or purpose of the act, or
• the defendant intentionally induced the complainant to consent by impersonating a person known personally to the complainant.

These are conclusive presumptions that there wasn’t consent.

Rebuttable presumptions about consent

The following might indicate there wasn’t consent but they are rebuttable.

• If at the time of the time of the act, or immediately before, any person was using violence against the complainant or another person, or causing her to fear immediate violence would be used against her or the other person.
• If the complainant was unlawfully detained, and the defendant was not.
• If the complainant was asleep or otherwise unconscious.
• If the complainant would not have been able at the relevant time to communicate to the defendant whether she consented.
• If the complainant had been given or had taken, without her consent, a substance which could cause or enable her to be stupefied or overpowered at the time of the relevant act.

All of these things are frequently portrayed in mainstream films and pornography and are likely to make viewers think that it wasn’t rape and wouldn’t be considered in court to be rape if they did something similar to someone else.

The Domestic Abuse Act 2021 clarified by restating in statute that a person is unable to consent to actual bodily harm or more serious injury, including intentional strangling or breath restriction, which would amount to the offence of battering. There are exceptions for some activities, like sports within their rules.

The government has said that it is intending to introduce a statutory aggravating factor for cases of manslaughter involving abusive, degrading and dangerous sexual conduct. That would allow higher sentences for these types of homicides – following concern about homicides involving “rough sex” getting very low sentences. This would also be available where death occurred as a result of a victim’s vulnerability following sexual conduct – so it could include failing to seek medical attention for someone who sustained an injury during sex.

Coercive or controlling behaviour in intimate relationships

This is our offence of coercive or controlling behaviour in intimate relationships, which was created by the Serious Crime Act 2015:

If two people, “A” and “B” are personally connected and

• A repeatedly or continuously engages in behaviour towards B that is controlling or coercive
• The behaviour has a serious effect on B, and
• A knows or ought to know that the behaviour will have a serious effect on B

“A” is committing the offence of coercive or controlling behaviour.

An effect is “serious” if it causes B to fear, on at least 2 occasions, that violence will be used against B, or if it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.

“Ought to know” is what a reasonable person in possession of the same information would know.

It’s a defence to this offence for A to show that in engaging in the behaviour A believed he or she was acting in B’s best interest and that the behaviour was in all circumstances reasonable. That defence is not available where the behaviour caused B to fear that violence would be used against her.

You quite often see coercive or controlling behaviour in porn and there are aspects of prostitution that are coercive – and yet this is generally unrecognised by the police.

Pornography and the competitive global online environment

Online pornography and the companies that own porn websites are competing for viewers’ attention in a global online marketplace which includes many depictions of serious violence, torture, murder, and mass destruction.

This global online marketplace operates outside domestic and national laws and definitions of rape, sexual assault and unlawful physical violence.

Human rights organisations condemn many acts of sexualised violence and degradation that feature in online porn, as torture or inhumane treatment prohibited by human rights treaties, for which consent isn’t a defence, if these acts are carried out or acquiesced in by state agents. The same human rights organisations fail to condemn equivalent acts when they occur on porn sites – as they do with depressing regularity.

The impact of the global competitive market in pornography

Sex buyers practise sexual scripts derived from porn on prostituted women before using them more widely. Sexual scripts progress to being considered mainstream and performance of acts on a “bucket list”.

Viewers, including teenagers and even children, don’t receive these sexual scripts as ‘man bites dog’ outlier examples of behaviour but as part of an international rote-memorised sexual curriculum.

Research carried out by Dr Fiona Vera-Gray of Durham University and published in 2021 looked at ways in which mainstream pornography positions sexual violence as a normative sexual script by analysing video titles on the landing pages of the three most popular pornography websites in the UK. The study was unique because it focused on the content that would be immediately advertised to you as a new user.

The researchers found that 1 in 8 titles shown to first-time users on the first page of mainstream porn sites described sexual activity that constitutes sexual violence. More recent research in France on the porn shown to first-time users found that the proportion of porn titles that describe sexual activity that constitutes sexual violence has increased since Vera-Gray’s study was published in 2021.

Pornhub’s position as the most popular mainstream pornography site hasn’t been affected by accusations of monetising videos of rape, sexual assault and other acts of violence and numerous lawsuits relating to human trafficking.

It’s interesting that sexual offences have been removed from many criminal law modules studied by people seeking professional legal qualifications in case they are triggering. But images that may constitute these offences are on display online just about everywhere. You’d think it would be useful for law students to know what they are seeing might be illegal if carried out in real life.

Associating sex with pain and degradation

Online porn routinely associates sex with pain and degradation.

Porn directors often seek to produce fearful or distressed reactions or require neutral responses from porn performers to violent and painful acts, because these responses are more popular. The cruelty is the point and the money-earner.

Injuries and harm inflicted on women during porn shoots are edited out. This means that viewers do not get a meaningful understanding of the likely consequences of some of the acts depicted.

Before they get paid, performers often have to sign agreements consenting to what happened to them during a shoot and stating that they were not harmed.

Even where this is not the case, complaining or being seen as difficult will affect how you are seen by directors in the porn industry and whether you are cast in films again.

There’s a reason why you don’t hear much from porn performers about the nature of the industry until they have left it.

The illusion of pleasure

Another aspect of porn and also prostitution is giving the illusion of pleasure.

Viewers of porn and sex buyers often fail to recognise that porn performers and prostituted women are performing acts, roles and personas for a financial reward.

They assume the stereotype that women in prostitution are more “highly-sexed” than women outside the sex industry.

Women who have left the sex industry often find that men they have relationships with who are aware of their past involvement expect them to perform in their intimate lives in the same way they did for financial reward.

This enables men who watch porn or pay for sex to ignore the circumstances in which women become involved in the sex trade. It promotes the belief that the women they pay made choices directed by their sexual desires.

This is a myth propagated and perpetuated by the sex industry. The biggest threat to its business model is unpaid sex. At its heart, the sex industry is extremely socially conservative and regressive, and it’s invested in maintaining gender inequalities.   

Online porn and physical, psychological, and sexual health

Online porn creates expectations about sex, “sexual performance” and body image which can make both women and men feel inadequate and be physically and psychologically damaging.

Men may feel pressure to perform like male porn performers whose “performances” are frequently enhanced by drugs.

The camera angle rather than sexual pleasure is the priority for porn directors.

Condom use is not obligatory and the use of lube in scenes involving anal sex is often discouraged because the director wants to capture expressions of pain.

Exposure to online porn contributes to ignorance about the risks of serious harm, injury, trauma to the body and mind and even death from some acts, because these risks are minimised in the interests of “entertainment”.

Coercion and peer pressure

Women, especially young women, may feel pressured to receive or submit to certain acts, like anal sex or “rough sex”, for fear of being labelled “prudish”, rather than because it’s something they desire.

I saw a thread on X (formerly Twitter) a couple of months ago where a man asked what are the things that men get the impression from porn that women like but that in fact they don’t like. There was a very long thread that was mostly things around anal sex and choking (strangulation). Someone pointed out that sometimes a woman might say she likes something because she thinks a man will be attracted to her and the man then thinks that women like that. It’s a bit like the song in My Fair Lady where Henry Higgins says that “rather than do either they do something else that neither likes at all”. So it can have a bad impact on intimate relationships.

“Group sex” encounters involving multiple men and a single or smaller number of women are often arranged to initiate newcomers into a group as a bonding exercise, which may also bind members of the group in future.

Pressure to perform to stereotypes of “masculinity” in a group situation like this can over-ride boundaries a man might well have observed outside the group. And very often, certainly where not everyone in the group is equally enthusiastic about what they were getting into, there were reasons why they had to impress the other men who were there.

Media headlines

This images shows various news article headlines. The first one is from 2018:

Survey reveals ‘alarming’ attitudes of Britons on rape.

It was referring to a report of an online survey of nearly 4,000 people carried out in 2018. A third of the respondents said that there had to be physical violence for sexual activity to count as rape. A third of males and a fifth of females said it wouldn’t usually be considered rape if the woman had flirted on a date. The younger respondents were reported to have held views more closely aligned to the law. More than a third of over-65s didn’t regard non-consensual sex in marriage or relationships as rape compared to 16% of 16–24-year-olds. And 42% of over-65s said that if sexual activity continued after a woman changed her mind, it’s not rape – compared to 22% of 25-40-year-olds.

The over 65s would have grown up in an era when domestic violence and abuse wasn’t taken seriously at all and where marital rape wasn’t even considered a crime. That didn’t change until a House of Lords judgement in October 1991.

More to do to tackle rape misconceptions and lack of understanding of consent, CPS survey finds – 26 January 2024 | News, Sexual Offences

The second headline is from a report published on 26 January 2024 of a survey of 3,000 adults commissioned by the Crown Prosecution Service to collect recent evidence of how the public view rape and serious sexual offences and the law on consent, reflecting the changing nature of sexual behaviours. This was to help inform its handling of the prosecution of rape cases.

That survey found that while the public understanding of rape has grown over the past 20 years, there are still significant false beliefs, misunderstandings and misconceptions. It also revealed that misconceptions about rape have moved into the digital age with a focus on the behaviour of victims online.

Given the results of the survey I mentioned from 2018, six years earlier, the response of 18–24-year-olds in this newer survey was alarming. Only half recognised that it can still be rape if a victim doesn’t resist or fight back; less than half recognised that rape victims may not immediately report to the police; less than half recognised that being in a relationship or marriage does not mean that consent to sex can be assumed; less than half recognised that if a man had been drinking or taking drugs, he’s still responsible if he rapes someone; and young people were far less likely to understand that if a person says online that they want to meet up and have sex that does not mean that they have to have sex when they meet.

That 18–24-year-olds are likely to have had more exposure to sex education in schools than older ones, suggests that misconceptions are evolving and being spread in digital spaces, and that digital spaces have more influence than what they’ve been taught in school, and that this will be the same for those under 18. This is causing serious problems now as you will see from the third and fourth headlines, and serious challenges for the future:

Children now ‘biggest perpetrators of sexual abuse against children’ – The Guardian, 10 January 2024.

‘Toxic’ online culture fuelling rise in sexual assaults on children by other children, police warn. – The Guardian, 17 February 2024

The police have said that the involvement of minor offenders is exacerbated by the accessibility of violent porn.

Met Police ‘failing to deal with child sexual exploitation’, report says

The fifth headline is from February 2024 and is about an HM Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) report into the Metropolitan Police, the largest force in England and Wales. The report said that the Met is failing to deal with child sexual exploitation, leaving vulnerable young people at risk. The inspectors had serious concerns about the Met’s performance and said they lacked understanding of the nature and scale of child sexual exploitation, which was a significant barrier to being able to address it. This was shown in some cases by the choice of language by people who were expected to be protecting children.

But it isn’t only young people who have these misconceptions. The media colludes and news items say things like, ‘a man was convicted of having sex with a 12-year-old’. That is the rape of a child – in England and Wales a 12-year-old can’t consent to sexual activity.

The Domestic Abuse Act 2021 I mentioned earlier defined domestic abuse for the first time and this includes abuse within families as well as within intimate relationships. An intimate relationship itself is not restricted to a relationship of a specific duration and so could include a single meeting with somebody.

The types of behaviour that are specified as abusive include physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, and psychological, emotional or other abuse. This can consist of a single act for any of these types of abuse, rather than a course of conduct, which was how things were previously understood.

As we’re talking about the use of language today, it is worth emphasising that all of those types of behaviour come within the umbrella term, ‘violence against women and girls’ (VAWG), which the Home Secretary recognised as a national threat alongside terrorism in February 2023.

The Scottish government regards prostitution as a form of violence against women and girls and has recently published a strategy to improve support for women involved in it, including providing exit routes.

The UN Special Rapporteur for Violence Against Women and Girls who recently visited the UK also emphasised VAWG as a national threat.

In June 2023, the National Police Chiefs’ Council (NPCC) published updated guidance on policing prostitution-related offences in which it said that prostitution is not necessarily violent. This suggests that they think that VAWG only includes physical or sexual abuse – a similar view to thinking it isn’t rape if she doesn’t fight back. This view is used to justify failure to enforce our laws against sex buyers and those who profit from the prostitution of others and their collaboration with the drivers of demand.

It doesn’t align with the range of behaviours identified as abusive in the Domestic Abuse Act 2021, which are VAWG and worthy of attention.

Further reading

For a harrowing account of where this is leading in practice, see ‘Anyone want a go’: Filmed Sexual Violence and Male Bonding.