Criminal Law: Conditional Consent Essay
‘To what extent should sexual consent be considered conditional? In
constructing your answer, consider whether accurate disclosure regarding health
conditions, willingness to usecontraception and gender ought to be central to a
legally valid consent to sex.’
Consent is imperative when determining whether or not someone is guilty of a sexual
offence. It is present in both the actus reus and mens rea element of various sexual
offences.For example, the actus reus element of rape asks whether or not the victim
consented, whilst the mens rea element asks whether or not the defendant reasonably
believed that the victim consented. There are various ways in which to approach the
matter of consent. It can be presumed conclusively or evidentially. It is also generally
defined in s.74 Sexual Offences Act 2003 as ‘a person gives consent if he agrees by
choice and has the freedom andcapacity to make that choice.’ There are also cases
where consent may have been given, but it was not valid. For example, consent
provided through pressure or mistaken consent. This essay seeks to focus on the
matter of conditional consent in relation to such factors and whether or not the law
surrounding consent is satisfactory.
In some cases, the victim will have given conditional consent to sex. They consent to
sex, butonly if X…In such a case if X is not present, there will be no consent. A case
example would be that of Assange v Swedish Prosecution Authority, in which the
woman only agreed to have sex with a condom. Sex without a condom would therefore
quite simply be an act to which she had not consented. Assange, on two separate
occasions, allegedly had sex without a condom with women who had only agreed to
have sex on the condition that he wore a condom. He therefore would be guilty of an
offence under the 2003 Act. As sexual offences are extremely grave, with rape reaching
the peak of severity, it is important that consent governs the ways in which a person
feels comfortable to participate in such activities. In this case, it is likely that the women
involved felt the need to use contraception in order to protect themselves. This decision
‘To what extent should sexual consent be considered conditional? In
constructing your answer, consider whether accurate disclosure regarding health
conditions, willingness to usecontraception and gender ought to be central to a
legally valid consent to sex.’
Consent is imperative when determining whether or not someone is guilty of a sexual
offence. It is present in both the actus reus and mens rea element of various sexual
offences.For example, the actus reus element of rape asks whether or not the victim
consented, whilst the mens rea element asks whether or not the defendant reasonably
believed that the victim consented. There are various ways in which to approach the
matter of consent. It can be presumed conclusively or evidentially. It is also generally
defined in s.74 Sexual Offences Act 2003 as ‘a person gives consent if he agrees by
choice and has the freedom andcapacity to make that choice.’ There are also cases
where consent may have been given, but it was not valid. For example, consent
provided through pressure or mistaken consent. This essay seeks to focus on the
matter of conditional consent in relation to such factors and whether or not the law
surrounding consent is satisfactory.
In some cases, the victim will have given conditional consent to sex. They consent to
sex, butonly if X…In such a case if X is not present, there will be no consent. A case
example would be that of Assange v Swedish Prosecution Authority, in which the
woman only agreed to have sex with a condom. Sex without a condom would therefore
quite simply be an act to which she had not consented. Assange, on two separate
occasions, allegedly had sex without a condom with women who had only agreed to
have sex on the condition that he wore a condom. He therefore would be guilty of an
offence under the 2003 Act. As sexual offences are extremely grave, with rape reaching
the peak of severity, it is important that consent governs the ways in which a person
feels comfortable to participate in such activities. In this case, it is likely that the women
involved felt the need to use contraception in order to protect themselves. This decision
