We all agree that where a person has not consented to sex then for someone to proceed to have sex with that person is criminal. But if lack of consent is crucial, what is 'consent'?

In Scotland a jury must decide for itself what 'consent' means and the Scottish Law Commission has recently pointed out that this can lead to ambiguity.

There may be many different views of what 'consent' is, or of what sort of behaviour can be evidence of 'consent'.

If there is no definition, then the door is open to prejudice about the way women dress, drink and behave.

It also means there is nothing in legislation to say how the law expects a person to behave and how people are to understand the behaviour of others.

The commission has suggested that consent could be defined in statute. It offers two definitions, though is open to suggestions on other options.

The commission has suggested that the definition should be accompanied by a list of certain situations which indicate that consent is not present

The first is "free agreement". The second is "positive co-operation in act or attitude pursuant to an exercise of free will; involving persons acting freely and voluntarily and with knowledge of the nature of the act in question".

As potential jurors would we find these definitions helpful in determining the existence of consent in what can often be very complicated situations surrounding sexual matters?

In order to assist jurors further in determining the existence of consent the commission has also suggested that the definition should be accompanied by a list of certain situations which indicate that consent is not present.

The list would include situations where violence or threats are used against the victim, or against a third person; where the victim is unconscious or asleep; where the victim is held prisoner; and where consent has been given not by the person but by a third party.

'Take advantage'

The list should also include where a person has taken or been given alcohol or other substances and as a result lacked the capacity to consent.

Should all these situations be included? Should they be refined? Are there any other situations that should be added to the list, for example, where a person is blackmailed?

Sex involving very drunk people is a particularly difficult issue.

It is clear that no criminal liability can be attached to someone who has sex with a person who as the result of alcohol has decided to enter into a sexual encounter with them, a decision they would not have made if they were sober.

However, it seems equally clear that it is criminal to take advantage of someone who is so drunk that they are clearly incapable of making a decision.

Would the commission's approach assist a jury in determining what types of drunken sexual activity should be criminal and what types not?

Would a jury require more information about what the law understands about consent and the ability to give it?