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A new campaign by non-profit Right to Equality, in partnership with creative agency CPB London and actress and comedian Emily Atack, has called for the adoption of affirmative consent as a legal standard in England and Wales.
The campaign’s use of the slogan “I’m asking for it” received widespread criticism. It was labelled offensive by survivors of sexual violence, who pointed to the use of the phrase to blame women for their own sexual assault.
This has resulted in some re-messaging. Right to Equality has released further promotional images with different slogans, such as “only yes means yes”.
But the campaign’s aim remains the same: to change the law so that consent must be given through clear words or actions indicating permission to engage in sexual activity. In short, this change would aim to make a “yes” the proof of consent, rather than the absence of a “no”.
However, there are different approaches to affirmative consent in law, and they are not without their own issues. These can include focusing attention on the actions of complainants and overlooking the pressures that could lead to a token “yes”. A better option might be to shift focus on to whether those accused in cases of sexual assault sought consent.
The current law
Current law in England and Wales defines consent as agreement by choice, where the person has the freedom and capacity to make a choice. A person will be guilty of a sexual offence where the complainant did not consent and the accused did not reasonably believe they consented. In determining whether the accused’s belief was “reasonable”, attention can be paid to whether the accused took any steps to find out if the complainant consented.
But the law has been criticised for placing responsibility on the complainant to deny consent. The assumption may be that consent is given unless someone gives clear signs, either verbally or physically, that they do not consent to the encounter. This could be saying “no”, or pushing the other person away.
A recent research report from the University of Warwick has found that the treatment of rape cases by the Crown Prosecution Service includes victim-blaming language and a focus on the credibility of complainants ahead of the behaviour of suspects.
And the application of the law in this area is complicated by rape myths. A 2024 study by the Crown Prosecution Service itself found that one of the most common public perceptions of rape is that it involves physical violence and is committed by a stranger.
In reality, around 90% of sexual violence is committed by someone known to the complainant. Only half of the 18-24-year-olds in the study thought that an encounter can still be rape if the victim doesn’t resist or fight back.
Positives – and pitfalls
Affirmative models of consent emphasise communication. They may require active signals of agreement before an encounter is considered consensual.
The Right to Equality campaign defines affirmative consent as “an active, voluntary, and mutual decision … given through clear words or actions”. It states that consent should be “clear and enthusiastic”, rather than simply the absence of a “no”, and that this consent “can be withdrawn at any time, and cannot be obtained by expressed or implied force, threats, or coercion”.
Legal systems elsewhere in the world include aspects of affirmative consent. In California, for example, consent is defined as “positive cooperation in act or attitude pursuant to an exercise of free will”. In Iceland, it is defined as having been “expressed by free will”, and in Sweden as “voluntary participation”.
Under these definitions, consent is performative rather than a state of mind. There must be active signals of agreement before an encounter is considered consensual. This means that if someone is accused of sexual assault, their ability to argue that they believed the complainant consented on the basis of a lack of refusal is limited.
However, there is a danger that such formulations may unwittingly place attention back on the actions of the complainant – to attempt to prove that certain words or actions by the complainant meant “yes”.
What’s more, a range of pressures may lead someone to give a token “yes”, and this may be uncritically accepted by a jury.
A different approach
Another approach to affirmative consent is to change how the law frames the actions of the accused.
In Northern Ireland in 2019, conversations on reforming consent formed part of the Gillen Review into sexual offences.
The review did not recommend reforming the legislative definition of consent. But it recommended changing what constitutes a reasonable belief in consent so that a jury is asked to consider whether the defendant failed to take steps to find out if the complainant consented.
This means that instead of placing responsibility on the complainant to give affirmative consent, attention is on whether the defendant sought consent.
I believe, based on my research on sexual violence in Northern Ireland, that this proposal has the potential to shift narratives of responsibility in rape trials.
Focusing on a failure to obtain consent provides the prosecution with the opportunity to question the accused on instances during the encounter where further enquiries into consent could have been expected, and, where the accused failed to do so, to ask them to account for this failure.
To harness the potential of this recommendation, however, my interview data suggests that we need more conversations about consent so that communication, in its various forms, is viewed as a normal and natural part of healthy sexual relations.
Eithne Dowds received funding from the Socio-Legal Studies Association in 2019 to conduct some of the research that forms the basis of this article.
