Consenting to Sexual Activity

Derry, Caroline (2020). Consenting to Sexual Activity. In: Claydon, Lisa; Derry, Caroline and Ajevski, Marjan eds. Law in Motion: 50 years of Legal Change. The Open University Law School, pp. 136–148.



This chapter explores how legal understandings of sexual consent have developed over fifty years. It begins with the immediate aftermath of OPP v Morgan, 1 which controversially placed the defendant's subjective perspective at the centre of criminal liability. Subsequent legal developments, leading up to and extending beyond the Sexual Offences Act are evaluated. The chapter asks why, despite a new, statutory definition of consent, the law on sexual consent remains highly contentious today. It explores possible answers through consideration of two particularly problematic areas - intoxicated consent and consent obtained by fraud -and asks whether the concept consent is adequate at all. Having examined the problems around the law on sexual consent, the chapter concludes by considering what the next steps might be.

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