What is Consent?

Consent is defined by section 74 Sexual Offences Act 2003. Someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. 

There is a big difference between consensual sex and rape. This aide focuses on consent, as allegations of rape often involve the word of the complainant against that of the suspect. The aim is to challenge assumptions about consent and the associated victim-blaming myths/stereotypes and highlight the suspect’s behaviour and motives to prove he/she did not reasonably believe the victim was consenting. We provide guidance to the police, prosecutors and advocates to identify and explain the differences, highlighting where evidence can be gathered and how the case can be presented in court.

Reference: http://www.cps.gov.uk/publications/equality/vaw/what_is_consent_v2.pdf

Context 
Context is all important to the consideration of freedom and capacity to choose. It is necessary to focus on complainant’s state of mind in the context of all the relevant circumstances. These will include: their age, maturity and understanding; whether s/he knew or understood the position they were in and what they were being asked to do; the history of the relationship between the complainant and suspect; position of power over the complainant; and, especially for younger and/or vulnerable victims: any earlier provision by the suspect of any gifts, alcohol or drugs; promises by the suspect of a more secure or exciting way of life; insincere compliments and/or kindness shown by the suspect; any other evidence of exploitation or grooming so that s/he may not understand the full significance of what they are doing.

Capacity to Consent
Issues to consider include whether the complainant had the capacity to consent if: s/he was under the influence of drink or drugs; s/he suffers from a medical condition which limits their ability to consent or communicate consent; s/he has a mental health problem or learning disabilities; s/he was asleep or unconscious.

Freedom to Consent
Issues to consider include whether the complainant had the freedom to consent, for example, in situations such as: domestic violence – where a partner or family member may use force or power to remove a complainant’s freedom to consent; where the suspect was in a position of power where they could abuse their trust, especially because of their position or status – e.g. a family member, teacher, religious leader, employer, gang member, carer, doctor; the complainant was dependant on the suspect, e.g. financially or for care. If the complainant was young, was s/he significantly younger than the suspect? Was the complainant old enough to consent? 

Spousal rape is a criminal offence in the UK.

Reference https://en.wikipedia.org/wiki/Marital_rape

Vulnerable Victims 
Vulnerable victims are targeted by offenders for a whole range of reasons, including the belief by offenders that: the complainants are more likely to succumb to pressure or intimidation on them to “comply” with the offender’s sexual advances; in some cases they may be less likely to have “home support” where the suspected abuse will be noticed or acted on; they are less likely to report the abuse in the first place due to their vulnerabilities; if they do report, they are less likely to follow it through to giving evidence; they will not be believed by those to whom they report it to, e.g. the CPS when deciding if to charge and, ultimately, the jury; overall, the likelihood of detection and prosecution is low.

Addressing Myths and Stereotypes
The form of dress a person wears does not mean they should expect to be raped. The majority of rape cases are where the offender and complainant know each other. Trauma can affect memory and create inconsistency. Being drunk makes the complainant vulnerable. It does not mean they were ‘asking for it’; most victims do not fight; resistance and self-protection/defence can be through dissociation, freezing or trying to befriend the defendant – in fact any effort to prevent, stop or limit the event. It does not have to succeed to be an ‘effort’. Late reporting may be due to inability to cope with the trauma of the incident, fear of repercussions, maturity with age recognising the abuse, control of the complainant, fear of going to court. In cases of adult survivors of child abuse the complainant may regress and behave or speak as a child.

Reference: http://www.cps.gov.uk/publications/equality/vaw/what_is_consent_v2.pdf

Here are some red flags that indicate your partner doesn’t respect consent:

• They pressure or guilt you into doing things you may not want to do.
• They make you feel like you “owe” them — because you’re dating, or they gave you a gift, etc.
• They react negatively (with sadness, anger or resentment) if you say “no” to something, or don’t immediately consent.
• They ignore your wishes, and don’t pay attention to nonverbal cues that could show you’re not consenting (e.g. pulling/pushing away).

Get Consent Every Time

In a healthy relationship its important to discuss and respect each others boundaries consistently. It is not ok to assume that once someone consents to an activity that is means they are consenting to it anytime in the future as well. Whether its the first time or the hundreth time; a date, a committed relationship or even marriage, nobody is ever obligated to give consent just because they have done so in the past. A person can decide to stop an activity at any time even if they agreed to it earlier. Above all, everyone has the right to their own body and to feel comfortable and how they use it - no matter what has happened in the past.

Reference: http://www.loveisrespect.org/healthy-relationships/what-consent/

"He raped me on numerous occasions forcing me to have sex because he needed it and held me down even through my tears. He ensured the act was completed on his terms, in his time frame and satisfying his own desires. He was demanding, kinky and rough and did not stop when asked. He showed no compassion for me even when I suffered gynaecological problems and had no empathy or sympathy and was still extremely demanding and rough sexually. When he was particularly vile he with-held affection and used affection and sex it to blackmail me. He definitely got a kick out of degrading me and enjoyed his power of force; power and force in the bedroom definitely turned him on."

See blog post here:
http://averyenglishmrsteacup.blogspot.co.uk/2014/03/another-place-another-time-one.html 
by Mrs Teacup: My Story of 20 years of Domestic Abuse

14.01.16

@ed2inspire

The Prevent Duty for Schools & all Childcare Settings

From the 1st July 2015 all schools, childcare settings and all establishments of higher and further education are subject to a duty under Section 26 of the Counter Terrorism and Security Act 2015 to have:

"due regard to the need to prevent people from being drawn into terrorism"

This is known as Prevent Duty and applies to a wide range of public bodies.

And all those organisations must have read, made themselves aware of and have regard to the statutory guidance here: 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/445977/3799_Revised_Prevent_Duty_Guidance__England_Wales_V2-Interactive.pdf 

Paragraphs 57-76 are particularly pertinent and specifically concerned with schools and childcare providers.

In order for schools and childcare providers to fulfil the Prevent duty, it is essential that staff are able to identify children who may be vulnerable to radicalisation, and know what to do when they are identified. Protecting children from the risk of radicalisation should be seen as part of schools’ and childcare providers’ wider safeguarding duties, and is similar in nature to protecting children from other harms (e.g. drugs, gangs, neglect, sexual exploitation), whether these come from within their family or are the product of outside influences.

Schools and childcare providers can also build pupils’ resilience to radicalisation by promoting fundamental British values and enabling them to challenge extremist5 views. It is important to emphasise that the Prevent duty is not intended to stop pupils debating controversial issues. On the contrary, schools should provide a safe space in which children, young people and staff can understand the risks associated with terrorism and develop the knowledge and skills to be able to challenge extremist arguments. For early years childcare providers, the statutory framework for the Early Years Foundation Stage sets standards for learning, development and care for children from 0-5, thereby assisting their personal, social and emotional development and understanding of the world. 

The Prevent duty is entirely consistent with schools’ and childcare providers’ existing responsibilities and should not be burdensome. Ofsted’s revised common inspection framework for education, skills and early years, which comes into effect from 1 September 2015, makes specific reference to the need to have safeguarding arrangements to promote pupils’ welfare and prevent radicalisation and extremism. The associated handbooks for inspectors set out the expectations for different settings. The common inspection framework and handbooks can be found here: 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/461767/The_common_inspection_framework_education_skills_and_early_years.pdf

The statutory guidance on the Prevent duty summarises the requirements on schools and childcare providers in terms of four general themes: risk assessment, working in partnership, staff training and IT policies. This advice focuses on those four themes.

Schools and childcare providers should have clear procedures in place for protecting children at risk of radicalisation. These procedures may be set out in existing safeguarding policies. It is not necessary for schools and childcare settings to have distinct policies on implementing the Prevent duty. 

General safeguarding principles apply to keeping children safe from the risk of radicalisation as set out in the relevant statutory guidance:

Working together to safeguard children, and...

Keeping children safe in education

Detailed guidance and online training is also available from:

https://www.gov.uk/government/publications/channel-guidance

http://course.ncalt.com/Channel_General_Awareness/01/index.html

Guidance on promoting British Values can be found here:

https://www.gov.uk/government/news/guidance-on-promoting-british-values-in-schools-published

The statutory guidance makes clear the need for schools to ensure that children are safe from terrorist and extremist material when accessing the internet in schools. Schools should ensure that suitable filtering is in place. More generally, schools have an important role to play in equipping children and young people to stay safe online, both in school and outside. Internet safety will usually be integral to a school’s ICT curriculum and can also be embedded in PSHE and SRE. 

General advice and resources for schools on internet safety are available on the UK Safer Internet Centre website here: http://www.saferinternet.org.uk/

As with other online risks of harm, every teacher needs to be aware of the risks posed by the online activity of extremist and terrorist groups.

Guidance and tips fro promoting British Values in schools and childcare settings canbe found here:

http://www.saferinternet.org.uk/

References: as above

Written by Elaine Hook - Education & Training Consultant and Safeguarding Expert
elainehook@hotmail.com
@ed2inspire
04.01.16