What Consent Means in Law After Meeting Online: Section 74, Conditions and Deception in England and Wales, and Free Agreement in Scotland

People who meet through dating apps often ask where the legal line sits on consent, particularly when a match has lied or ignored an agreed condition. The law differs by nation. This guide explains, in general terms, how consent is defined in England and Wales under the Sexual Offences Act 2003 and in Scotland under the Sexual Offences (Scotland) Act 2009, and how Crown Prosecution Service (CPS) guidance for prosecutors deals with conditions and deception. It does not cover Northern Ireland, and it is general information rather than legal advice. Anyone affected should seek support, and the site’s guide to NHS help after rape or sexual assault lists routes to help.

England and Wales: the definition in section 74

Section 74 of the Sexual Offences Act 2003 says that, for the purposes of the Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.

Section 75 sets out circumstances in which evidential presumptions apply. They include where the complainant was asleep or otherwise unconscious at the time of the act, where violence or fear of violence was involved, where the complainant was unlawfully detained, and where a substance capable of stupefying or overpowering the complainant had been administered without consent. Section 76 provides conclusive presumptions where the defendant intentionally deceived the complainant about the nature or purpose of the act, or intentionally induced consent by impersonating a person known personally to the complainant. The CPS guidance notes that in R v Bingham (2013) the Court of Appeal held that section 76 is to be strictly construed and that it would be a rare case in which it applied.

Conditions and deception under section 74

The CPS’s Rape and Sexual Offences guidance on consent describes a body of case law, sometimes called “conditional consent”, about situations where apparent consent is not true consent because of a material deception or because the person did not comply with a condition the complainant had set. The guidance says these cases illustrate the need to apply all relevant context when deciding whether there was free choice under section 74.

Express conditions. In two cases the CPS cites, the complainant had made consent conditional, in one on the man wearing a condom throughout and in the other on him not ejaculating inside her. The courts considered the complainant’s sexual autonomy.
Deception. A third case concerned a deception by the defendant about gender during the sexual activity.
Condoms. The guidance says it will not necessarily amount to rape every time a condom is not worn even though there was an agreement to use one, and that prosecutors must consider the overall context. It notes that in R v Lawrance (2020) the Court of Appeal held that deceptions closely connected to the nature or purpose of intercourse can vitiate consent. A lie about wearing a condom is sufficiently closely connected because it physically changes the nature of penetration, whereas a lie about fertility is not.
Filming. In R v BVA (2025) the Court of Appeal upheld a conviction where a man filmed himself touching a complainant sexually while she slept, and she would not have allowed the touching had she known. The court also emphasised that the decision was fact-specific, and that failure to disclose filming would not always vitiate consent.

The CPS’s guidance is written for prosecutors, and it describes how the law has been applied. It does not settle any individual case, and whether an offence occurred depends on the evidence.

Scotland: free agreement

Scotland has its own statute. Under section 12 of the Sexual Offences (Scotland) Act 2009, “consent” means free agreement. Section 13 sets out circumstances in which free agreement is absent. They include:

where the person is incapable, because of the effect of alcohol or any other substance, of consenting;
where the person agrees or submits because of violence or threats of violence against them or another person;
where the person agrees or submits because they are unlawfully detained;
where the person agrees or submits because they are mistaken, as a result of the other person’s deception, about the nature or purpose of the conduct;
where the person is induced to agree or submit through impersonation of someone known personally to them;
where the only indication of agreement comes from someone else.

What this means for people who date online

The CPS guidance says conditions embody personal sexual autonomy, because they are positive choices about which the other person can be in no doubt.
In Scotland the statutory list expressly covers incapacity through alcohol or another substance and agreement or submission because of violence, threats or unlawful detention.
The site’s guide to setting boundaries and communicating consent covers the practical side of conversations before meeting.

Frequently asked questions

Is consent defined the same way across the UK?

No. England and Wales define it in section 74 of the 2003 Act as agreeing by choice with freedom and capacity to choose, while Scotland’s 2009 Act defines it as free agreement.

Does the CPS guidance mean any broken promise is a crime?

No. The CPS says that not every case where a condom was not worn despite an agreement will amount to rape and that prosecutors must weigh the context, and the courts distinguish deceptions closely connected to the sexual act from broader circumstances.

The bottom line

In England and Wales consent means agreeing by choice with freedom and capacity to choose, and in Scotland it means free agreement. Case law and CPS guidance show that conditions and some deceptions closely connected to the sexual act can negate consent, but the outcome depends on the facts. Anyone who is worried about what happened should contact the police or a support service such as those in the site’s linked guide.