Understanding Consent
Let’s start with what should be a universal concept – sexual assault is any type of sexual contact or conduct that occurs without the recipient’s explicit consent. A challenge in prosecuting and litigating many sexual assault cases, particularly “date rape” cases or cases involving intoxication or incapacitation, is dealing with the issue of “consent” as a defense.
What Is Consent?
With every sex assault case, three basic questions concerning consent must be determined:
- What consent, if any, was given;
- Was the person legally capable of giving such consent; and
- Was consent changed or withdrawn?
What constitutes “consent” has been in flux throughout history as society’s views change. Historically, laws imposed a “duty to struggle” on a woman. If a man “forced” himself on a woman, the woman was required to use “force” to resist. Specifically, a woman was required to use every physical means within her power to resist penetration. She was required to fight back even if she feared that screaming or fighting would be countered with more force or result in death or serious injury. Nonresistance, or anything less than “convincing physical resistance,” could be equated to consent.
The judicial system has reformed the legal concept of consent over the years. In most jurisdictions, consent means actively agreeing to be sexual with someone. However, it is recognized that how this consent occurs can vary. An individual could communicate consent verbally by explicitly agreeing to certain sexual activities and expressing clear boundaries. However, for many, expressly communicating consent like this is uncomfortable, and they choose to use non-verbal communication.
The law recognizes that the expression of a desire to engage in an activity or positive cooperation in the act can be used to express consent. Unfortunately, non-verbal communication is not always objective and can lead to claims of misunderstanding. It is important to understand that silence or a lack of protest or resistance does not equate to legal consent.
Capacity to Consent
Another component of the criminality of sexual assault is whether the victim had the capacity to consent. Sexual consent capacity is concerned with the ability of an individual to make a voluntary, reasoned decision about whether to engage in sexual activities. Across most states, the capacity to sexually consent involves three elements:
- whether the individual possesses the knowledge to make the decision;
- whether the individual demonstrates “voluntariness” to make the decision;
- whether the individual demonstrates an ability to make a reasoned decision.
Examples of some factors that contribute to someone’s capacity to consent include:
- Age: Whether the person is above the age of statutory consent in their state.
- Disability: Whether the person has a physical or developmental disability or other mental incapacitation that prevents them from understanding the nature of the activity.
- Intoxication: Whether the person is so intoxicated or drugged that their ability to consent is substantially impaired.
- Unconscious: Whether the person was sleeping, sedated, or otherwise unconscious.
- Relationship of Perpetrator to Victim: Certain victims cannot consent to engage in sexual activity with individuals in positions of authority. This would include teachers, correctional officers, and therapists.
Withdrawal of Consent
Consent is a defining difference between sex and sexual assault. A person who has the capacity to consent also has the right to revoke that consent. If a person becomes incapacitated after consenting (e.g., losing consciousness or becoming too intoxicated) their consent is withdrawn.
When consent is affirmatively revoked or revoked because of incapacitation, sexual activity must immediately stop. If consent to sexual activity is given, withdrawal of consent must be understandable through words or actions that clearly convey that a party is no longer willing to engage in the sexual activity. Someone who continues the sexual act after consent is withdrawn commits assault.
While not exactly universal law, every individual should operate with the following moral ‘rape equation’ in mind:
Reducing rape to this simple equation restores the focus of the assault where it belongs – on the victim. The mode or method used by the perpetrator shouldn’t change whether a rape occurred, only whether additional charges or penalties are warranted.
Contact Our Sexual Assault Attorneys for Help
When you or a loved one experience sexual abuse or assault, our compassionate team can fight tenaciously on your behalf. Call Boyk Law today.
