Consent is defined as ‘free agreement’. Where some form of coercion, violence or threat is used, this is not free agreement and consent would not be present.
In addition to this definition, the Act provides a list of situations where consent or ‘free agreement’ is deemed to be absent. These include:
- Where the victim is incapable of consenting because of the effect of alcohol or any other substance.
- Where the victim is asleep or unconscious.
- Where the victim agrees or submits to the conduct because of violence or threats of violence used against them, or any other person.
: Other situations may occur that are not on this list. This does not imply that consent is given.
The Act also clarifies the position where consent is given then later withdrawn. It states the following:
- Consent to one type of conduct does not imply consent to any other type of conduct.
- Consent to conduct may be withdrawn at any time. This can be before or during the conduct.
- If the conduct takes place or continues to take place after consent has been withdrawn, it does so without consent.
Capacity to provide consent
Having the capacity to give consent is important. If the victim has any mental illness; personality disorder; or learning disability, however caused or manifested this must be acknowledged. Anyone is incapable of consenting to conduct if through their mental disorder they are unable to do one or more of the following:
- Understand what the conduct is.
- Decide whether to engage in the conduct (or as to whether the conduct should take place).
- Communicate any such decision.