What Is Legal Consent? Exploring Its Role in Sex Crime Cases

A recent CDC study conducted in 2023 revealed that an overwhelming 79% of students reported asking for verbal consent before initiating sexual contact, suggesting that sexual education for the youth has come a long way.

Even when consent is verbally announced, that doesn’t make it legal, though. For instance, under the law, a minor cannot legally consent to any sexual activity with an adult. Considering all this complexity, it’s important to learn what constitutes legal consent and what does not.

Do you believe that your recent sexual experience was non-consensual? If so, then it’s important to talk to an attorney who can give you a complete overview of your legal options. Depending on your circumstances, you could have both criminal and civil recourse.

Here at Kermani LLP, our team has been advocating for injured individuals since our firm was established in 2011. Our multi-million-dollar verdicts and settlements prove that we have what it takes to represent you and secure what you’re entitled to under the law. Find out more about how the law defines legal consent and how that could impact your potential claim below.

What is Legal Consent?

California Penal Code section 261.6 defines the concept of legal consent, which is specified as a voluntary, freely given agreement to engage in a specific sexual activity. Under this legal definition of consent, a person can withdraw their agreement to sexual activity at any point.

What is consent in law when it comes to intoxication or incapacitation? These types of factors can alter a person’s ability to provide consent. Age is also a factor that could influence a person’s ability to legally provide voluntary consent.

Consent is never valid or legal when it is given due to fear, intimidation, or threats. California law also states that minors under the age of 18 cannot legally consent to sex.

The Role of Consent in Sex Crimes

The concept of consent in sex crimes is central to most offenses. Many sex crimes, like rape, sodomy, forcible penetration, and oral copulation, occur when one party does not provide sexual consent. The lack of consent is generally a foundational element.

Consent and the Burden of Proof

The burden of proof in both civil and criminal cases rests with the person filing the claim or charges. In a criminal case, the burden of proof is beyond a reasonable doubt, which means you’ll need to prove beyond a reasonable doubt that the perpetrator committed the sex crime without your consent. You can use existing consent laws, physical evidence, and your personal testimony as evidence to support your claims.

In a civil lawsuit, the burden of proof is a preponderance of the evidence. In other words, you’ll need to produce enough evidence to reasonably convince a judge or jury that the other party didn’t have your consent to commit the sexual act. The current consent definition law will consider your personal testimony as significant evidence.

How State Laws Define Consent

The general consent legal definition as being free, voluntary, clear, and informed applies in every state, but state laws do vary when it comes to other factors like incapacitation, age, power dynamics, and age.

For instance, the laws of consent when it comes to age vary. In Tennessee, the age of consent is 13, whereas it is 18 years old in Florida. This wide variance means that your legal rights may vary based on where the incident occurred.

Challenges in Proving Consent in Court

When the two parties don’t agree on whether consent was present, which is often the case in these types of situations, each party will need to attempt to prove their case by presenting their testimony and evidence. One of the biggest challenges in proving legal consent in court is that the court will likely have to heavily rely on each party’s personal testimonies. Typically, there is a lack of witnesses during intimate encounters. What’s more, the withdrawal of consent could be considered very subjective in some sexual acts. Other factors, like an imbalance of power, intoxication, and coercion can also be tricky to prove.

He Said, She Said Scenarios

Non-consensual sexual intercourse is very hard to prove when the situation is a ‘he said, she said’ scenario. In these types of situations, both parties have conflicting narratives about what happened and neither party has significant evidence to prove their statements. Unfortunately, serious allegations like rape and the absence of consent can be almost impossible to prove without any evidence.

Role of Evidence in Determining Consent

Evidence plays a critical role in proving consent, but it’s not always readily available in sex crime cases. Sometimes, coercion or duress in consent can be proven by showing evidence that supports relationship intimidation, a system of fear, or abusive tendencies.

Institutionalized coercion can also be proven in some sex crime cases. For instance, the recent outpouring of stories from Mormon churches around the country could be used as evidence to support your claims even if it isn’t directly related to you giving your personal consent. For more information about filing religious sexual criminal claims, contact our best Mormon abuse lawyer now.

Impact of Witness Testimonies and Expert Opinions

Voluntariness of consent is a critical aspect, but it’s extremely hard to prove especially when there usually aren’t any witnesses during an intimate moment. Unfortunately, witnesses can also be very unreliable in these types of situations, as one party might subjectively assume consent was present because the couple seemed happy, but that doesn’t mean that both parties consented to a sexual act.

Consent as a Defense in Sex Crime Cases

Consent can also be used by a defendant as an affirmative defense in sex crimes. In many situations, if the defense can prove the activity was consensual, then there’s no basis to charge them with a crime.

Consent in law means that the consent must be clear, free, voluntary, mutual, and informed. The defendant can prove consent was present by producing evidence like text messages suggesting consent, phone calls, video footage, witness statements, and other evidence that shows mutual affection and sexual intent.

Examples of Consent in High-Profile Cases

One of the most publicized sex crime cases in recent history involves Jeffrey Epstein. Epstein was accused of running a human trafficking island that fueled countless incidents of sexual assault, rape, and non-consensual sexual crimes. One of the biggest reasons why the suspect's island was considered so controversial was because many of the women at these parties were underage. In most areas, these young girls would not be able to give legal consent to sexual activities, but on the island, it seemed that these laws were ignored. The suspect was arrested, and multiple victims came forward with claims of abuse. Over 135 people were granted $121 million from the suspect’s estate.

Another recent high-profile and highly publicized example of a non-consensual sexual incident that occurred in the workplace involved multiple employees, including the founder, at Fox News. Multiple women, including Gretchen Carlson, came forward claiming they were sexually harassed at work. Carlson was eventually awarded over $20 million for the ordeal.

Another important case revolved around the now-infamous Harvey Weinstein and his treatment of women. Over 30 women claimed Weinstein violated the sexual consent law, leading to sexual abuse and harassment. In 2020, Weinstein was sentenced to serve 23 years in prison.

How Legal Professionals Address Consent in Sex Crimes

Both parties have a right to hire a legal representative, and when it comes to sex crimes and consent, it’s in both party’s best interests to have a lawyer’s help. The right attorney can help you identify potential evidence you could collect to support your claims. They can also assist you with pinpointing exactly what happened and what options you have for addressing other challenges associated with proving consent.

When you’re going up against a criminal defense attorney for sex crimes, you have to expect to have your testimony questioned and your evidence challenged. Unfortunately, this can feel very distressing if you don’t have the right legal representation by your side to fight for your best interests.

Here at Kermani LLP, our Chicago sexual abuse attorneys will help you address your consent concerns, identify your legal options, and pursue a claim if that’s what you decide to do.

Get in Touch with an Attorney Today

Legal consent when it comes to sexual activity is complex. If you expressed a sexual boundary to someone else who failed to adhere to it, then you might have legal recourse. Depending on the circumstances, you might be able to file charges against the perpetrator in criminal court or pursue a personal injury lawsuit against them in civil court.

Here at Kermani LLP, our team has over a decade of experience navigating sexual assault lawsuits and similar cases. No perpetrator is too big for us to go up against. We are confident in our ability to navigate high-profile cases that involve institutionalized abuse, and we’re equally as passionate to represent you if you have a smaller, more personal claim.

Schedule a free case evaluation with our team now to get started on your pursuit of justice.