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How to Use Consent as a Sexual Assault Defense

Attorney Talking to Client
Consent is one of the most common defenses to sexual assault charges. If someone has accused you of sexual assault, however, don't assume that the court will acquit you just because the alleged victim consented to the act. You still need to prove the following things for you to succeed with the consent defense.
The Victim Gave the Consent
No one can give consent to a sexual act on behalf of another person. For you to use consent as a sexual assault defense, you have to show the alleged victim is the one who gave the consent. A sibling, parent, teacher, or religious leader cannot give consent. You cannot say that you had physical intimacy with someone because their parent had given you permission; no court will allow such a defense.
The Victim Had Reached the Age of Consent
Not everyone can give consent to sexual activities. For example, children cannot give consent to sexual acts; a child's consent is illegal as far as the law is concerned, and the minimum age of consent may vary from state to state.
In Texas, anyone below the age of 17 cannot give consent to a sexual act. Therefore, you have to prove that the alleged victim was at least 17 years old on the date of the alleged act if you want to use consent as your defense.
The Victim Was Sober
In addition to minimum age, consent to a sexual act is also only valid if it comes from a sober individual. A person with impaired judgment will not be in the right mind to refuse or consent to a sexual act.
Therefore, the court will throw out your consent defense if there is proof that the alleged victim had drunk themselves to a stupor before you committed the alleged act.
The Victim Wasn't Mentally Ill
Mental illness is another factor that can interfere with a person's judgment and even distort their reality. As such, a mentally ill person cannot give valid consent to a sexual act, even if they agreed to a sexual act. The best option is not to have sexual relations with a mentally ill person at all.
The court will consider the victim's mental state at the time of the alleged incident — not at the time the authorities became aware of the allegations. Therefore, the alleged victim may still make valid accusations against you even if they have overcome their mental illness.
The Victim Consented to the Specific Activity
People engage in various sexual acts, and a person can consent to one or more sexual acts, and not the others. Therefore, you may have to prove that the alleged victim consented to the specific act with which they have accused you.
For example, someone may claim that they had consented to a kiss, but then you wrestled them down and had penetrative sexual intercourse with them. Unless you have evidence to the contrary, the authorities will prosecute you for sexual assault in such a case.
The Victim Consented Voluntarily
You may also have to prove that you did not force your accuser to consent to the sexual act. If you threaten someone and they give in to your sexual demands, their consent is not valid because they have given it under duress.
Note that threats come in different forms; they go beyond violence or physical injuries. For example, a threat to fire an employee who doesn't give in to your sexual demands is a valid threat that negates the defense of consent.
At Joe D. Gonzales & Associates, we believe that all criminal suspects are innocent until proved otherwise. Therefore, we will give you the best defense possible if someone has accused you of sexual assault. If you face sexual assault charges, give us a call so that we can begin to craft your defense.