Kara Sears
Consent is a legal term that refers to an individual's voluntary agreement to engage in a particular activity. In the UK, consent is a critical concept in various contexts, including sexual relations and data processing. In sexual relations, consent is defined by the Sexual Offences Act 2003, which establishes that consent must be freely given and can be withdrawn at any time. It also highlights the distinction between consensual sex and rape, emphasising the importance of challenging victim-blaming stereotypes and focusing on the behaviour and motives of the suspect. Additionally, the law addresses cases involving individuals under the age of 16, providing extra protections for young people aged 16 and 17. In the context of data processing, the UK's General Data Protection Regulation (UK GDPR) outlines requirements for valid consent, including the need for it to be specific, verifiable, and freely given, with the option to withdraw consent at any time without penalty.
| Characteristics | Values |
|---|---|
| Legal Definition | Agreeing by choice, having the freedom and capacity to make that choice |
| Age of Consent | 16 years |
| Additional Protections | In place for young people aged 16 and 17 |
| Withdrawal | Consent can be withdrawn at any time |
| Deception | Ostensible consent can be vitiated by deception |
| Suspect's Behaviour | Focus on suspect's behaviour and motives to prove they did not reasonably believe the victim was consenting |
| STI Transmission | A person may consent to the risk of acquiring an STI |
| Data Processing | Consent must be verifiable and can be withdrawn at any time |
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What You'll Learn
Consent in sexual activity
Prosecutors should consider two stages when determining consent: whether the complainant had the capacity (age and understanding) to make a choice about participating in the sexual activity, and whether they were in a position to make that choice freely. The crucial question is whether the complainant agrees to the activity by choice.
It is important to note that consent cannot be assumed based on a person's actions or what they are wearing. For example, flirting, accepting a drink, or wearing a short skirt does not indicate consent. Consent must be given verbally, and if someone seems unsure, stays quiet, moves away, or doesn't respond, they are not agreeing to sexual activity.
In the UK, the age of consent is 16. Anyone aged 16 or over can legally consent to sex, regardless of gender or sexuality. However, there are exceptions to this rule. It is illegal for anyone in a position of trust, such as a teacher or youth worker, to have sexual contact with anyone aged 17 or under in their care. Additionally, under English and Welsh law, children under the age of 13 are considered less capable of consenting than those aged 13 and over, and different offences are listed for cases involving children aged 12 and under.
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Consent and age
The age of consent in England, Wales, and Northern Ireland is 16 years. This means that young people of any sex, gender, or sexual orientation can legally consent to participating in sexual activity once they are 16. Sexual activity between two or more people is always unlawful if at least one person is under the age of 16.
The age of consent was first set in England in 1275 at 12 years old. Over the years, this age has been raised and lowered, with the most recent change occurring in 2008 when the age was raised from 17 to 16 in Northern Ireland.
There have been calls to lower the age of consent in the UK. In 1993, British research by the Centre for Family and Household Research found that "an increasing proportion of young people are sexually active below the age of consent". The National Council for Civil Liberties (NCCL) called for an equal age of consent of 14 or 10 in Britain in 1976. More recently, some sexual health professionals have argued for a lower age of consent to facilitate more effective support from health and education services.
Despite these calls for change, the age of consent remains at 16 in the UK. Under English and Welsh law, children and young people under the age of 13 are considered less capable of consenting than those aged 13 and older. The Sexual Offences Act 2003 lists different offenses for cases involving children and young people aged 12 and under, and prosecutors must consider this when deciding whether or not to prosecute.
Consent is defined as agreeing by choice, and having the freedom and capacity to make that choice. Consent can be withdrawn at any time during sexual activity. If consent is not given, any kind of sexual activity is considered sexual violence.
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Withdrawing consent
Consent is defined by section 74 of the Sexual Offences Act 2003. The legal definition of consent is when we agree by choice, and when someone has the freedom and capacity to make that choice. Consent can be withdrawn at any time during sexual activity, and each time the activity occurs.
Consent must be easy to withdraw, and it should be as easy for an individual to withdraw consent as it was for them to give it. This means that if someone gave consent through an app, they should be able to use the same app to withdraw their consent. When giving consent, an individual must be informed of the process for withdrawing it.
In the context of personal data, consent is one of the grounds for lawfully processing it under the Data Protection Act 2018 and the UK GDPR. Under the UK GDPR, consent can be withdrawn at any time. This means that if an individual withdraws their consent, the processing of their personal data must stop or be anonymised immediately. The UK GDPR also states that people must be able to refuse and withdraw consent without being penalised.
In the case of parental consent, it won't automatically expire when the child reaches the age of consent. However, consent may need to be refreshed more regularly as the child gets older.
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Consent and deception
Consent is defined by Section 74 of the Sexual Offences Act 2003. Consent is when someone agrees by choice and has the freedom and capacity to make that choice. Consent can be withdrawn at any time during sexual activity.
Rape by deception occurs when a perpetrator deceives a victim into participating in a sexual act to which they would not have consented had they not been deceived. Deception can take many forms, including illusory perceptions, false statements, and false actions.
In the UK, there has been much debate about whether transgender people who have sex with partners unaware of their trans identity can be charged with rape by deception. In 2025, a trans woman in the UK was convicted of sexual assault for failing to disclose her trans status to a sexual partner. The Crown Prosecution Service stated that it would consider each case separately and would not automatically prosecute transgender individuals who had sex by deception.
In R v Lawrance (Jason) [2020] EWCA Crim 971, the Court of Appeal considered the circumstances in which deception was capable of vitiating ostensible consent in sexual offences. The Court ruled that deceit as to fertility does not vitiate consent to sex. This ruling was based on the interpretation that the deception must be related to the physical performance of the sexual act rather than the broad circumstances surrounding it.
In another case, R v Bingham [2013] EWCA Crim 823, the Court held that section 76 of the Sexual Offences Act 2003 should be strictly construed and that it would be rare for this section to be applied. This case concerned a defendant who deceived and pressured the complainant into having sexual intercourse more frequently than she would have otherwise. The Court found that there was no deception as to the nature or purpose of sexual intercourse, and therefore the conclusive presumption of consent was not applicable.
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Consent and data processing
Consent is a key principle in UK law, encompassing various domains, including data processing. In the context of data processing, consent is one of several lawful bases for processing personal data under the General Data Protection Regulation (GDPR). While consent is essential, it is not the only option, and organisations should consider alternative lawful bases, such as legitimate interests, especially when dealing with children's data.
When it comes to data processing, consent must be unambiguous, requiring a clear affirmative act or statement. It cannot be implied and must be given through an opt-in, declaration, or active motion. Written consent is recommended for accountability, but consent can also be given electronically. The UK GDPR sets the standard for valid consent, emphasising that consent should be freely given, and individuals must be able to refuse or withdraw consent without penalty.
The UK GDPR also recognises that consent might be influenced by power imbalances, such as in employer-employee relationships, rendering it invalid. Additionally, the "coupling prohibition" states that consent for processing personal data beyond what is necessary for a contract is prohibited. Consent must be informed, and data subjects should be notified about the controller's identity, the type of data processed, its purpose, and how it will be used.
In the case of children's data, parental consent is required for those under 13 in the UK, and age verification measures must be implemented. However, the "Gillick competence test" considers whether an individual child understands and consents for themselves. In Scotland, a person aged 12 or older is presumed competent unless proven otherwise.
While consent is important, it is not always the best option for processing personal data. Organisations must respect individuals' choices and stop processing if consent is withdrawn. Therefore, consent should be chosen as a last resort, and other lawful bases should be considered first.
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Frequently asked questions
Consent is when someone agrees by choice and has the freedom and capacity to make that choice. Consent can be withdrawn at any time.
Under English and Welsh law, children under the age of 13 are seen as being less capable of consenting than those aged 13 and over. The age of consent is 16.
Sexual consent happens when all people involved in any kind of sexual activity agree to take part by choice. Consent must be given for each instance of sexual activity and can be withdrawn at any time.
Yes, consent can be withdrawn at any time. If someone says 'no' to any kind of sexual activity, they are not agreeing to it. If someone doesn't say 'no' out loud, that doesn't mean they have consented.
