ABSTRACT
This chapter discusses the different approaches to assessing capacity to consent to sexual relationships. It examines assessing capacity to consent to sexual relationships under criminal law, with reference to the Sexual Offences Act and highlights the differences between this approach and that of the approach under civil law. Capacity to consent to sexual relations is an area of assessment that creates a great deal of confusion and anxiety for assessors. The Courts have been pragmatic in recognising that it would be intrusive for the person and impractical to revisit the issue of capacity every time the person wishes to engage in sexual activity with someone. The Courts have been generally clear that the weighing up component, whilst not an “irrelevant consideration”, is “unlikely to loom large in the evaluation of capacity to consent to sexual relations”. A range of additional factors can then be considered relevant to person A, person B and the circumstances surrounding the sexual contact.
