Affirmative Consent Standard Attorneys

In every state, for sexual activity to be legal, both parties must give their consent in order to show that the parties have freely agreed to engage in sexual activities with each other. There must be voluntary, knowing, mutual, verbally, and explicitly communicated consent to engage in sexual activity.

The legal definition of consent varies from state to state. Whatever the definition, when consent is not present, there may be criminal consequences, including jail time.

When is Consent Required for Sexual Activity?

Consent is required for all sexual touching or contact. If one of the parties has not consented, the other may be charged criminally with sexual assault. Sexual assault can involve an act of force or violence, but it need not be – any sexual activity where one party has not given consent is an assault. For example, when the victim is intoxicated, mentally ill, or a minor, any sexual touching or contact is an assault even though there may have been no violence.

Can a Minor Consent to Sexual Activity?

All 50 states prohibit sexual activities between an adult and a minor. “Minor” does not necessarily mean under age 18. In 33 states, anyone 16 or older can consent to sexual activity. In 8 states, the age of consent is 17. In the remainder of the states, anyone younger than 18 is a minor and cannot consent.

Having sex with someone under the age of consent is considered statutory rape, a serious crime. The defendants cannot protect themselves by saying they were mistaken about the minor’s age. Prosecution of the crime does not require that the defendant knew that they were having sex with a minor – sleeping with a minor is a crime, whether the defendant knew that is what they were doing or not.

What Does It Mean Legally to Consent to Sexual Activity?

Again, each state has its own definition of consent, and this definition is crucial to determining whether there has been a crime. The key consideration here is that consent should be communicated clearly and explicitly.

While each state varies in how it defines consent, there are three general inquiries that a court may engage in to determine whether there is evidence of consent:

1. Was the consent affirmative? By explicit or overt actions or words, did the parties indicate their agreement to engage in sexual acts?
2. Was the consent voluntary? Did the perpetrator use coercion, violence, or threat of violence to induce the victim to engage in sexual activities against their will?
3. Did the parties have the ability to give consent? Was there a legal or some other incapacitating obstacle to consent? For example,
   • Age of Consent: Was the victim a minor?
   • Mental or Other Incapacity: Was there some developmental disability? Was the victim passed out?
   • Intoxication or Unconsciousness: Was the victim intoxicated? Does your state recognize involuntary or voluntary intoxication? Was the victim asleep at the time of the assault? Was the accuser given drugs that affected their capacity to consent knowingly?
   • Relationship Between Victim and Perpetrator: Was the perpetrator in a position of authority – a boss, a teacher, or a police officer, for example?

Note that the following are not accepted as evidence of consent:

• Silence; or
• The fact that the parties engaged in sexual contact before the event gives rise to problems (i.e., sexual activity based on pre-existing relationships (dating and marriage))

If you are in doubt, before you engage in sex, wait for an answer that clearly states “yes” and be sure that none of the infirmities listed above are present. If there is doubt or equivocation, the best course of action is to abstain from sexual activity.

What Facts Can Support Legal Consent for Sexual Activity?

Determination of whether there was consent in a particular case boils down to the facts and whether there is evidence of an agreement between the parties to engage in sexual activity. The court will look at all evidence, including the following:

• Did the purported victim freely consent to engage in sexual activity (e.g., was the accuser incapacitated by drugs or alcohol)?
• Was the victim fully informed about the nature of the sexual activity? For example, did the defendant disclose to the victim that they had a sexually transmitted disease? Did they tell the victim they were free of sexually transmitted diseases when they knew they were not?
• Did the victim withdraw their consent?
• Did the defendant perform a sexual act that the victim disagreed with? For example, the victim may have agreed to engage in one sexual act, but the defendant performed a different sexual act.
• Did the victim agree only to kissing, but the defendant then engaged in full sexual intercourse?

What Does “Sexual Touching or Contact” Include?

Sexual touching or contact is defined as the knowing, purposeful touching of an intimate or private part of another to arouse sexual desire. The touching may be accomplished either directly to the person’s body or through their clothing.

One example of an act that constitutes sexual touching includes inappropriately grabbing someone’s genitals, even when covered by clothes. Other examples could be kissing someone without their consent or threatening unwanted sexual conduct.

In some situations, touching or contact involving another person’s intimate or private parts would not fulfill this element of sexual assault. This includes:

1. Medical Personnel exception: Medical personnel are allowed to touch the patient’s private parts if they are performing a clinical examination of the patient. However, this does not apply if a person falsely represents themselves as a medical professional or when an actual medical professional touches someone inappropriately outside the scope of the medical treatment. One example would be if a medical professional fondled a patient while they were under anesthesia.
2. Parental exception: If a parent is performing necessary domestic functions, like changing a diaper or giving a bath, then touching a child’s private parts would not be considered contact of a sexual nature. If, however, the touching is not being performed for a necessary domestic function, then the touching may be considered sexual assault and child abuse.

Should I Speak to an Attorney for Issues with Affirmative Consent?

If you have been accused of a sex crime or have general questions, always consult a local criminal defense attorney. They can explain your rights and help you understand your legal situation.

Sexual assault can lead to criminal charges and a civil lawsuit brought by the victim. The criminal laws of each state classify sexual crimes and prescribe the penalties for each one. Generally, the penalty for sexual assault or battery involves imprisonment in jail or a penitentiary, the payment of fines, and possibly registration as a sex offender.

A sexual assault defense attorney is a criminal defense lawyer who has experience in defending people accused of sexual assault. As soon as the police contact a person regarding a possible accusation of sexual assault, the person should consult an experienced sexual assault lawyer for guidance.

The lawyer can advise an alleged perpetrator on how to deal with the police. The lawyer can analyze the evidence of the prosecution and develop additional evidence of defenses if available. Most critically, a criminal defense attorney can represent them at pre-trial hearings, plea negotiations, trial, and sentencing if the case gets that far.