Capacity to Consent to Sex: A Historical Perspective

Abstract

Abstract This article provides a historical perspective on capacity to consent to sex. It examines who could make decisions about sex, whose consent mattered and why. The article draws from legal history and from transcripts and testimonies in unreported sexual offence cases in England, heard in the Central Criminal Court in London and the regional assizes between the years of 1918 and 1950. These cases, often involving vulnerable complainants below the age of consent and those with mental disabilities, show that the concept of capacity was neither fixed nor clearly articulated. The article argues that, historically, capacity was not a biological or medical construct, but rather a social one, influenced by notions of class, gender and even eugenic ideals. The article demonstrates that, during this period, sexual offence law enabled social and population control, and that, despite significant legislative advances, capacity remains a fraught concept.