Freedom and capacity to consent

For a person to actively give consent, they need to agree by choice and must have the freedom and capacity to make that choice.

What is capacity to consent?

There are many things that might affect a persons capacity (e.g., the ability to do something), in this case to give their sexual consent:

being intoxicated from alcohol and/or drugs

having a significant mental health diagnosis (e.g., schizophrenia/psychosis episodes/bipolar disorder)

being asleep, unconscious or drowsy

having a brain injury

have a learning disability, disabilities, and communication support needs

someone who has dementia

children who are under the age of 16 (the legal Age of Consent in the UK)

It’s important to note that just because someone has a mental health condition or is neurodiverse, that doesn’t mean that they don’t have the capacity to consent. However, it could mean that it impacts their understanding of consent and/or healthy relationships.

What is freedom to consent?

If there is any consequence with someone saying “no” then that person does not have any freedom to give their consent. Coercion is the use of threats, intimidation, manipulation or lies to try and control someone and get them to do what you want them to do.

So, if someone is being coerced or sexually exploited, the law recognises that there can be no consent present. Coercive behaviour can be difficult to spot, but might include:

giving someone gifts, money or drugs in return for sex and/or to start a relationship

power dynamics – using threatening behaviour, intimidation or physical force

guilt tripping or blackmailing someone into having sex

bargaining with someone e.g., “If you do… for me”, “Then I’ll do… for you”

expecting someone to do something (e.g., because of gender, culture or religious beliefs)

There’s no consent in coercion

We make and understand refusals all the time in our everyday life – sex is no different.

Coercive behaviour is seen as obvious outside of an intimate relationship, for example if you buy something in a shop and the person serving gives you an incredibly hard sell, you could identify their pushy and controlling behaviour and just walk away.

But when it comes to our intimate relationships things become complicated because there’s a lot more emotion involved. There can also be an expectation that if you are in a relationship, then you have the right to have sex. This isn’t true.

However, when it comes to sex, you should only do stuff you WANT to do, not things you feel you’re expected to do. If someone respects you, they’ll check in and want to make sure you’re having a safe, enjoyable and pleasurable time.

The choice is ALWAYS yours.