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Defense of Consent

In some criminal cases, a defendant may rely on the defense of consent to absolve himself of criminal liability. The defense of consent applies only to crimes where consent, or lack thereof, is an element of the alleged offense. An element is a particular finding that must be proved by the district attorney in a criminal case in order for the district attorney to prove that the defendant is guilty of the alleged crime.

For example, the crime of rape has three elements that must be proved by the district attorney before a defendant may be found guilty: 1) sexual intercourse, 2) with a woman who is not the wife of the defendant, and 3) without the woman’s consent. Accordingly, the defense of consent might apply to a rape allegation if the defendant can prove that element 3 (without the woman’s consent) is false.

In essence, if a crime requires a finding that the victim did not consent to the defendant’s act and the defendant can show that the victim did consent to the defendant’s act then the defendant is not criminally liable for that crime.

Note: The defendant has the burden of proving that his or her conduct was consensual in a criminal case. The law has previously ruled that placing the burden of proving consent on the defendant does not violate the law that requires the district attorney to prove every element of a criminal case beyond a reasonable doubt before the defendant may be found guilty of the alleged crime.

Consent definition: The most basic non-legal definition of consent means to have permission; however, for purposes of criminal law, consent has a slightly different definition. The definition of consent in criminal law means the defendant does all of the following:

  • Act freely and voluntarily and not under the influence of threats, force or duress

  • Has knowledge of the true nature of the act or transaction involved, and

  • Possesses the mental capacity to make an intelligent choice whether or not to do something proposed by another person

The defense of consent most commonly arises in criminal cases related to sex offenses and theft offenses, including the following crimes that have an element of consent as part of their definition: Rape, spousal rape, sexual penetration by force with a foreign object, sodomy, oral Copulation, theft, and robbery.

Note: Consent may be express or implied. Express consent means the victim has granted the defendant written or verbal permission to engage in conduct that otherwise would be considered criminal conduct without that consent. A written sexual consent contract is an example of express consent. Implied consent is consent that is granted by implication under the circumstances. For obvious reasons, the issue of whether or not the victim’s consent was implied in a particular situation is usually the gravamen of the defendant’s legal consent argument.

Passive Consent: Merely being passive in a situation can, but does not necessarily, amount to consent. For example, a store security guard is not consenting to the act of shoplifting when he watches a shoplifter walk out of the store before apprehending the shoplifter. In essence, no attempt to prevent a criminal act is not the same as consent. Consent requires a freewill and positive cooperation in an act.

Exceptions: Express or implied consent may also be a defense to conduct related to organized sports (i.e. baseball, boxing, football, basketball, etc.). For example, if a football player tackles another football player during a football game then the tackled person cannot claim that the tackler assaulted or battered him because tackling is a normal part of the game of football. In order for the defense of consent to apply to organized sports the physical contact between the players must be reasonably related to how the sport is played. Keep in mind that the sport must be an organized sport for the defense of consent to apply. For example, the crimes of street racing and street fighting are not considered to be organized sports; therefore, the defense of consent does not apply to those activities.

Third Party Consent Not Valid: A person cannot consent on behalf of another person in sex cases. For example, a husband cannot grant consent to another person to engage in sexual intercourse with the husband's wife. The consent, whether express or implied, must come from the person that engages in the conduct that would otherwise be criminal if consent were not granted.

Withdrawal of Consent: Consent to engage in certain conduct that would otherwise be considered a crime without that consent may be withdrawn. For example, if a wife initially consents to sexual intercourse with her husband, but during sexual intercourse she withdraws her consent, then her husband’s continuation with sexual intercourse is a crime (spousal rape).

Note: Withdrawal of consent after consent has been granted must be clearly communicated by words or conduct in order for that withdrawal of consent to be effective. In other words, the defendant should not be held criminally liable where he or she is permitted to engage in conduct that would otherwise be considered criminal without the alleged victim’s consent unless withdrawal of the alleged victim’s consent is clearly and timely communicated to the defendant.

Fraud Induced Consent: Consent that is granted to the defendant only because the defendant misrepresented the facts to the victim is not valid consent. For example, if the defendant misrepresents that she is a parking valet in order to unlawfully take possession of the victim’s vehicle then the victim’s consent for the defendant to take the vehicle is not valid.

Apparent Capacity to Consent: In some cases, it might appear that the alleged victim has granted consent, but the alleged victim is nevertheless incapable of granting consent due to some legal limitations. For example, any person under the age of eighteen (18) cannot legally consent to sexual intercourse, oral copulation, sexual penetration, sodomy, and other sex crimes (Some exceptions may apply for minors who are legally married). In addition, persons who are unconscious or intoxicated by drugs or alcohol, or a combination of both drugs and alcohol, to such a degree that they cannot understand the nature and consequences of their acts, cannot legally consent. Finally, persons who suffer from a disease or defect of the mind to the point that those persons do not understand the true nature and consequences of certain acts, are not capable of legally consenting to those acts.

Note: As stated, generally a minor cannot consent to engage in sexual conduct; however, this does not mean that a defendant is without a defense when he or she engages in sexual conduct with a minor. Other defenses may still apply, including mistake of fact (reasonable belief that the alleged victim was not a minor at the time of sexual conduct), statute of limitations, insufficient evidence required to prove the allegations, coerced confessions, impeachment of witness statements, and more.

To learn more about the defense of consent contact our criminal defense lawyers. Our lawyers are standing by and ready to assist you with your criminal case. Call today!



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