Informed and Voluntary Consent: A Crucial Aspect in Defending Rape Cases
“Is consent much broader than simply saying yes?”
Every criminal case comes with complications. Sexual assault cases are in a league of their own. Because of the political climate, because of Me Too and so much more, sexual assault cases are easily some of the hardest if not the hardest cases to handle in the criminal justice system. Now, let’s narrow those down to He Said, She Said cases. In other words, frequently, it comes down to a question of consent. If you are facing serious sexual assault, date rape, or other kinds of sexual assault charges in Minnesota and the question is one of consent, make sure you sit down with an experienced Minnesota sexual assault defense attorney.
“When dealing with He Said, She Said cases, you must never forget that the She Said part may be enough for some juries.”
What is the Definition of Consent in Minnesota?
According to the Statute, consent in the context of sex charge is defined as:
“words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.”
What is NOT Consent?
Again, according to the statute, it articulates what is Not Conset. In fact, the statute specifically excludes a prior relationship as consent. In other words:
“Consent does not mean the existence of a prior or current social relationship between the actor and the complainant”
Even further, it says that that prior relationship doesn’t provide consent even if the other person says nothing. According to the language of the statute, consent is not granted even if:
“the complainant failed to resist a particular sexual act.”
In other words, there must be overt acts for consent.
Are There Some People Incapable of Providing Consent?
Yes. There are some, according to statute here in Minnesota who are actually incapable of providing consent. There are a list of limitations including:
Age: The age of consent for sex in Minnesota is 16. If a child is between 13-16, their partner must not be more than 24 months older.
Physically helpless: A person is legally incapable of consenting to sex.
Mental Impairment: A person who is inadequately developed, who has impaired intelligence or a substantial psychiatric disorder of thought or mood and lacks the judgment to give a reasoned consent to sexual contact or to sexual penetration.
Mental Incapacity: There are two different levels of mental incapacity. According to the statute:
“that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration”; or
that “a person is under the influence of any substance or substances to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person's conduct.”
So, How Do You Defend When the Question is Consent?
Arguing Consent . Challenging the Lack of Consent:
Challenging the lack of consent is the most common approach. The arguments is simply that there was consent. Remember, there are a multitude of ways that one can provide consent. However in the end, this may become a question of fact and the jury may be the final arbiter as to whether consent was actually provided. Consent may include but is not limited to:
Verbal Consent: This is the form many assume is the only form of consent. it isn’t. However, using the spoken word like “yes”, “Let’s do this” are the most common forms of consent.
Written Consent: Another form of consent which actually includes a contract or agreement. While this is rare, it is possible. That being said, in law, this agreement is completely revocable at any time and so consent may still be at issue.
Non-Verbal Consent: Non-verbal consent or cue may include gestures, nodding, gestures, or other physical actions. Again, because of the “overt” requirement, this must be pretty clear and unambiguous. This is similar to Implied Consent and the same approach of cross examination of the complaining witness and investigating other witnesses who may have been at the scene.
Implied Consent: Implied consent is when someone's agreement or permission is based upon their actions. In other words, there is no verbal or written agreement but their behavior or conduct suggests agreement and a willingness to participate. However, in Minnesota, these acts must still be overt. This is usually determined through cross-examination of the complaining witness and other witnesses at the scene. Again, whether this kind of consent is sufficiently overt may be in the hands of a jury.
“Consent can be far more than somebody just saying yes. It can be non-verbal or maybe even implied if it is an overt act.”
In the end, consent can be extraordinarily important. it is important o consider power dynamics and the nuances in the relationship that can influence decision making. Also, expert testimony may also be helpful and they can shed light into the complexities of consent, trauma, memory and misinterpretation. At the same time, it is important to consider that coercion duress, deception, as well as age, mental incapacity, intoxication, or any other relevant factors could negate the question of consent entirely.
If you are facing sexual assault, rape, date rape or other serious criminal sexual conduct charges in Minnesota, it is important to know your rights, possible defenses and what you could be facing. Make sure that you consult with an experienced Minnesota sexual assault defense attorney. If possible, also make sure that they are also a Board Certified Criminal Law Specialist.
Go with the Best
Jack Rice is a former prosecutor, a former CIA Officer and a Board Certified Criminal Defense Attorney. He founded Jack Rice Defense before the turn of the century and is nationally recognized. Contact Jack Rice Defense for a free confidential consultation or call 651-447-7650 or 612-227-1339. When your life is on the line . . . Jack Rice Defense.