Consent is critical to any sexual assault case. In this article, we define the term “consent” and explain how it relates to sexual assault law.

Key Takeaways

• Consent plays an important role in determining whether an act is legally considered a crime
• Any sexual contact without consent is considered to be sexual assault
• Three elements that typically factor into consent include affirmative consent, freely given consent, and capacity to consent
• Any sexual activity with a person who does not have the capacity to consent is a crime, even if the other elements of consent are present
• Exact laws about what does and does not constitute consent and the capacity to consent in particular vary from state to state 

What Is Consent?

Consent is an important concept in the context of sexual assault law, playing an important role in determining whether or not an act can be legally considered a crime. 

Any sexual contact without consent is considered to be sexual assault, as is threatening to have sexual contact with someone without their consent. Because the victim has been subjected to sexual contact without their consent, all sexual assaults are categorized as violent crimes.

Every state has its own definition of consent, but there are three main ways that they typically use to understand consent in any given sexual assault case. These are:

• Affirmative consent -  Overt actions and words indicating an agreement to sexual acts
• Freely given consent - Consent offered of a person’s own free will without being induced by fraud, coercion, violence, or threat of violence
• Capacity to consent -  Being legally able to consent

Generally, speaking:

• Consent must be knowing, voluntary, and freely given
• Consent can be words or actions, as long as it creates explicit permission
• Consent must be revocable at any time
• Consent may not be inferred from the failure to say no or offer physical resistance
• Consent to engage in one form of sexual activity does not imply consent to engage in another form of sexual activity

Capacity to Consent

Whether or not a person is legally capable of consenting to sexual activity is based on a number of factors that typically vary from state to state. If a person is not found to have had the capacity to consent to sexual activity, it will be considered non-consensual, even if the consent was affirmative and freely given.

Factors that contribute to the capacity to consent include:

• Physical disability - People with a physical disability, incapacity, or another form of helplessness may be considered unable to consent
• Consciousnesses - Sleeping or being sedated, strangulated, or suffering from physical trauma may render a person unable to consent
• Developmental disability - Having a developmental disability or another form of mental incapacitation such as a traumatic brain injury may render a person unable to consent
• Intoxication - Being intoxicated may render a person unable to consent
• Relationship to the perpetrator - If the alleged perpetrator was in a position of authority over the victim at the time of the crime, it may be considered nonconsensual
• Vulnerability - Being elderly, ill, or dependent on others for care may render a person unable to consent
• Age - Every state has its own laws for how old a person must be in order to be able to consent. Some state laws indicate that the age difference between the perpetrator and victim also affects the age of consent.

Consent and Sexual Assault Law

Each state’s laws regarding consent are different, including the capacity to consent. If you are unsure about what laws apply to your circumstance, it is recommended to consult with a sexual assault attorney for guidance. A lawyer will also be able to review your case and guide you through the steps of filing a lawsuit if you should desire to do so.