consent and the law
In Scotland, consent is legally defined as 'free agreement'. This means that there are two parts to consenting to sex or sexual activity.
1. The person must agree to the activity - this means they have to say yes to it.
2. The person must agree freely - this means they can't be forced, pressured or coerced into saying yes. If someone says yes because they were forced to or have no choice, that ‘yes’ does not count as consent.
The law also says that there are certain situations in which someone cannot freely agree to sexual activity. These are:
when someone is incapable of consenting due to the effect of alcohol or any other intoxicating substance
when someone is asleep or unconscious
when someone is unlawfully detained (this is when someone is locked up without legal reason like kidnapping.)
when someone agrees because of violence or the threat of violence
when someone agrees because the other person is pretending to be someone else
when someone agrees because the other person, or someone else, deceives them about the nature or purpose of the sexual activity
In any of these circumstances, there cannot be free agreement to sexual activity which means there is NO consent. It's also really important to know three other things about consent.
Consent can be withdrawn at ANY time. This means that even if you have said yes to something, you can change your mind at any time before or during the activity. If the activity does not stop when you withdraw your consent, this will be rape, sexual assault or another non consensual offence.
Only you can give consent for your sex life. No one else can decide whether you consent to something, not your parents, husband, wife, brother, sister, boyfriend, girlfriend, friend, religious leader. Not anyone!
Consenting to one type of sexual activity does not mean that you consent to all sexual activity.
Rape is the penetration, with a penis, of someone else’s vagina, anus
or mouth without that person’s consent.
Legally, rape is a very specific offence that can only be committed by someone
with a penis. Anyone can be raped.
Sexual assault has a much broader definition than rape and includes touching, penetrating or any form of sexual activity with someone without their consent. Anyone can commit sexual assault.
It is essential for men of all ages to understand that sex without consent is rape, regardless of the circumstances. This is because in legal terms only men can commit rape. Equally anyone of any gender must understand consent as it is possible for anyone to commit a sexual assault.
Sex without consent is rape. If a person is unable to give consent to sexual activity, for whatever reason, then this is rape, a serious criminal offence.
People cannot consent to sex when they are asleep.
If you have sex with someone who is incapacitated or cannot give consent for whatever reason, this is rape.
Being in any form of relationship does not give the right to have sex without consent.
Police Scotland will seek justice for survivors by taking action against perpetrators.
Tackling the serious crime of rape is a priority for Police Scotland; rape is completely unacceptable in Scotland.
Information about rape and the law in Scotland.
Support, information and advocacy for all woman and girls in the Scottish Borders who have experienced rape or sexual violence.