Consent in Sex Offences

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The Law Commission

CONSENT IN SEX OFFENCES

A Report to the HomeOffice SexOffences Review

The Law Commission was set up by section 1 of the Law Commissions Act 1965for the purpose of promoting the reform of the law.The Commissioners are:The Honourable Mr Justice Carnwath CVO,

Chairman

Professor Hugh BealeMiss Diana FaberMr Charles HarpumJudge Alan Wilkie QCThe Secretary of the Law Commission is Mr Michael Sayers and its offices are atConquest House, 37-38 John Street, Theobalds Road, London, WC1N 2BQ.The terms of this report were agreed on 16 February 2000. It was then submittedfor the consideration of the Sex Offences Review set up by the Home Secretary,and is now published as an appendix to the Home Office report.

The text of this report is available on the Internet at:

http://www.lawcom.gov.uk

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THE LAW COMMISSION

CONSENT IN SEX OFFENCES

CONTENTS

Page

PART I: INTRODUCTION

1

PART II: THE ROLE OF CONSENT IN SEXUALOFFENCES

3Non-consensual sexual offences3Rape3Indecent assault3The meaning of consent4The burden of proof6

PART III: CAPACITY TO CONSENT: MINORS

8Capacity to consent: general8Age limits8Capacity to consent in minors: the second consultation paper9Our proposals9Responses to our proposals10Recommendations11An additional proposal: a conclusive low age limit for rape12

PART IV: CAPACITY TO CONSENT: MENTALINCAPACITY

14Statute law14Common law principles15The appropriate balance between paternalism and the right to respect forprivate life15The role of the law15United Nations Declaration on the Rights of Mentally Retarded Persons,Articles 1, 6 and 719

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