The legal definition for consent varies from state to state for sexual activities. Consent is required to show that the parties have freely agreed to engage in sexual activities with each other. When consent is not present, there may be criminal consequences that include jail time.

When is Consent Required for Sexual Activity?

Sexual assault can involve an act of force or violence and can be classified as a crime rising to the level of a felony. The defendant in a criminal case involving a charge of sexual assault may be found guilty if there is no evidence that the accuser has given consent for the sexual contact. Consent may be found absent in cases where the accuser is intoxicated, mentally ill or a minor.

Can a Minor Consent to Sexual Activity?

In most states, a minor cannot consent to certain sexual activities.  This scenario usually involves a person over the age of consent who engages in sexual activities with someone who by law is defined as a minor.

When this occurs, it is considered statutory rape and the minor is legally incapable of giving consent. It is not a sufficient defense that the accused was mistaken about the minor’s age.

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. For example, the following are traditionally not accepted evidence of consent:

  • Silence; and/or
  • Sexual activity based on pre-existing relationships (i.e. dating and marriage).

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. Affirmative Consent: By explicit or overt actions or words did the parties indicate their agreement to engage in sexual acts?
  2. Voluntary Consent: Did the perpetrator use coercion, violence, or threat of violence to induce the victim to engage in sexual activities against their will.
  3. Consent Ability: Was there a legal or some other incapacitating obstacle to consent?

Examples include:

  • Legal 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 knowingly consent?
  • Relationship Between Victim and Perpetrator: Was the perpetrator in a position of power—a teacher or police officer, for example?

If in doubt, wait for an answer that clearly states “yes” when none of the above infirmities are present. If there is any doubt or equivocation, the best course of action is to abstain from sexual activity.

What Facts Can Support Legal Consent for Sexual Activity?

Oftentimes the finding of consent boils down to the facts of a particular case 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 accuser freely give consent to engage in sexual activity (i.e. was the accuser incapacitated by drugs or alcohol)?
  • Did the accuser engage in sexual activity after being fully informed? For example, did the accused tell the accuser that they were free of sexually transmitted diseases when they knew they were not?
  • Did the accuser withdraw their consent?
  • Did the accused perform a sexual act that the accuser did not agree to. For example, the accuser may have agreed to engage in one sexual act but the accused performed a different sexual act.
  • Did the accuser agree to kissing but the accused then engage in full sexual intercourse?

What is Affirmative Consent for Sexual Activity?

Affirmative consent is a standard applied in higher education institutions addressing matters of sexual assault, stalking, and domestic violence on campus. It is frequently referred to as the “yes means yes” standard.

For example, Title IX, a federal law, prohibits discrimination in education on the basis of gender.  It requires higher education institutions who receive federal funding to have in place a comprehensive policy to address sexual assault on campuses.

Affirmative consent is a standard that makes clear there must be voluntary, knowing, mutual, verbally and explicitly communicated consent to engage in sexual activity. In higher education policies, affirmative consent typically can be revoked at any time, but can be reasserted throughout any sexual activity.

Also in the higher education context, the burden may shift between the accused and the accuser. Importantly, consent can be conveyed by words or actions as long as they clearly convey each parties willingness to engage in sexual activity.

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

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