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WHAT IS AFFIRMATIVE CONSENT?

Affirmative consent must be an active, voluntary, informed, and mutual decision to engage in sexual activity. Consent can be given through clear words or actions through which a person has indicated permission to engage in sexual activity. Affirmative Consent should be clear and enthusiastic, rather than simply the absence of a “no”. Affirmative consent can be withdrawn at any time, and cannot be obtained by expressed or implied force, threats, or coercion.

The Law in England and Wales is currently consent-based, but it is not ‘affirmative consent’ based. We are appalled by the low conviction rates for rape, which has resulted in a society where rape has become almost decriminalised. Less than 2% of reported rapes result in a charge. We believe the law in the UK, which is 20 years old, is lagging behind other jurisdictions and in family court, there is no definition of rape or consent.

 

Why should affirmative consent be in the law? 

The current approach to consent in the UK perpetuates harmful gender stereotypes and places a disproportionate burden on women to communicate their lack of consent. This approach assumes that men are always the initiators of sexual activity and that women are passive recipients who must say “no.” This reinforces harmful gender stereotypes and perpetuates a culture of inequality.

We want to raise awareness of the need for legal change. Many of us have heard about England’s appalling conviction rates for rape and sexual assault (on average less than 2% of reported rape cases result in someone being charged, let alone convicted). But do we understand that our current legal definitions of consent are contributing to those staggering figures?

 

Additional Research

Right to Equality is engaging in research on affirmative consent laws and investigating the impacts of such legislation. 

  • Right to Equality has commissioned Oxford University to research the law of “consent” in other countries, in particular the affirmative consent model. Such nations include Australia and Canada. This research sheds light on the various ways that it is feasible to include affirmative consent in legislation. The completed research is available here!
  • Right to Equality has commissioned Berkeley Law to compile a policy paper on affirmative consent, building on Oxford’s research. They’ve examined a workable and clear definition of affirmative consent and argued why it serves as the ideal model in criminal law. The research is available here: Policy Paper on Affirmative Consent
  • Armed with this evidence, we are advocating for the implementation of affirmative consent laws in the UK by engaging with policymakers, lawmakers, and relevant stakeholders.

At Right to Equality, we understand that changing laws will not eradicate rape, however adopting affirmative consent would help to create a culture of respect and understanding around sexual interactions. It sends a message that consent is not only necessary but also an active and ongoing process. It highlights the importance of communication, and it promotes healthy and respectful sexual relationships.

Adopting affirmative consent would help to create a safer and more respectful environment for all individuals. It would help to promote healthy and respectful relationships and would send a clear message that sexual assault and rape are not acceptable. It would also help to create a culture of respect and understanding, which is essential for creating a safer and more equal society.

 

SIGN THE PETITION HERE!

 

Right to Equality and CPB teamed up with Emily Atack to campaign for affirmative consent to sex. Learn more about our partnership here. The creators of this initiative are survivors of male violence, choosing to transform their trauma into efforts for legal reform. Collaborating closely with survivors, we crafted a campaign slogan. We recognise that the initial slogan had varied reactions. We empathise with survivors who found the slogan triggered pain and empathise with others who said it was an empowering reclamation. Your support would be greatly appreciated as we work together to achieve the campaign’s goals.

Over the last 12 months, we have worked with Oxford University and Berkeley Law School to research the law on consent and rape in other jurisdictions. There has been a 75% increase in convictions in Sweden following the introduction of such a model.

Rather than consent being implied because there is an absence of ’no’, we want to see a move towards a clear yes (which means a yes given verbally or through clear physical signals such as nodding yes or signing) with enthusiastic consent being asked for and given in consensual sexual relationships. We want to see real, meaningful societal change in how we understand our sexual relationships.

Our focus is on women and girls who suffer rape and rarely see justice, as well as the myths around consent, which persist despite campaigns on consent education. This campaign is a vital first step towards opening up much-needed discussion and changing the law. The petition reached 10,000 signatures, and the government replied. (read their reply here)

Our Reply

The government has replied, ‘We have no plans to amend the law on consent,’ claiming they ‘have taken a robust and zero tolerance approach to rape and sexual assault.’ This is a disappointing reply that fails to align with the reality survivors experience. How can the government believe they have taken an adequate approach when rape conviction rates sit at less than 2%?

Their reply continues with information we neither sought to address nor believe provided sound reasons for opting not to protect survivors.

The government’s reply centres strongly on the custodial sentence of convicted offenders being longer. This isn’t an issue we brought up, and we’re unsure why they felt that perpetrators receiving longer sentences addressed the issue of low conviction rates. However, since they brought this to our attention, we would like to note that the government recently announced early releases wherein sex abuse offenders, like Stephen Bear, are being released early. Lengthy sentences do not address the issues of a lack of conviction, and we fear that the lengthy sentences they assure us of are not as solid as they imply, given Justice Secretary Alex Chalk’s early release decisions.

The reply shares how the Sexual Offences Act 2003 had a consultation and modernised the law (we know- at the time, it was groundbreaking!). But it’s been twenty years, and we’ve seen no real progress since. The law should not be static but should be updated with new knowledge and expertise. We’ve unfortunately allowed our law to stagnate, leaving survivors to face the harms of the past while the rest of the world moves into the future.

They say the Act gives the strongest protections and enables the police to do their job. The CPS states the most difficult part of securing a conviction is proving a lack of consent. Survivors consistently say they are let down by the courts. There is a disconnect between what the government believes and the reality of the issue.

Their reply further tries to explain that the unspecific “free agreement” description in the current law is indeed sufficient, neglecting to recognise that the issue of implied consent remains and failing to understand that affirmative consent is not a question of solely verbal agreement but the establishment that consent was sought and affirmed (either through verbal agreement or physical signals such as nodding yes or signing).

To reiterate: Affirmative consent is an active, voluntary, and mutual decision to engage in sexual activity. The concept of affirmative consent emphasises the need for clear and enthusiastic communication of willingness to engage in sexual activity rather than simply the absence of a “no.” Affirmative consent has recently been enshrined in law in other nations, and we believe it should be adopted in the United Kingdom.

Yes, the law is consent-based. No, it’s not affirmative consent, and it accepts implied consent. Furthermore, there is no definition of consent or rape in the family court.

They then detail the reasonable belief clause.

Affirmative consent would remove the complications of reasonable belief because there would be clear and simple: Did they say yes?

As stated in Berkeley’s research (linked above):

“The current model where the perpetrator should determine whether he “reasonably believed” that consent was given based on “all relevant circumstances”, including the steps taken by him to ascertain the same is insufficient. These abstract, imprecise terms and factors focus on whether the victim “implied” any resistance or consent rather than engaging in voluntary approval. Furthermore, the need to investigate “relevant circumstances” gives the jury wide discretion to look into the complainant’s behavior, the relationship between parties, gender roles, bias, prejudices, norms, and other wider social attitudes in a judicial test.”

“There is an objective and subjective element to this test: 1. The perpetrator’s ability to evaluate consent – Subjective element 2. The perpetrator’s reasonable belief to such consent (Jury decides this) — Objective element’ The common law system often leaves the issues of consent and capacity for the jury to determine in cases of alleged rape. They would have to approach the evidence relating to “choice”, and the “freedom” to make any particular choice must be approached in broad common sense.

In the case of R v Olugboja, it was held that the jury is to decide cases of consent by “applying their combined good sense, experience and knowledge of human nature and modern behavior to all the relevant facts of that case.”

The perpetrator can rely upon a mistaken belief as long as it is deemed reasonable in all circumstances – and those circumstances presumably include the complainant’s conduct.”

The MOJ concludes, noting, “The law in this area is long established and well understood by the courts, police, practitioners and the public. We therefore have no plans to amend the definition of “consent” as suggested by this e-petition”

Having a law for twenty years does not mean we should remain complacent. Unfortunately, this reply does not reflect reality, given the low conviction rates and public acknowledgements that the law is not serving to protect and support survivors.

We won’t stop pushing for change and hope the government will re-evaluate their decision not to protect and support victims.

Consent