Legal Role of Consent

The legal definitions for terms like rape, sexual assault, sexual abuse, and sexual relations with a minor vary. You can check the definition of each of these crimes. No matter what term you use, consent often plays an important role in determining whether an act is legally considered a crime.

The legal role of consent

In general, there are three main ways that analyze consent in relation to sexual acts:

1. Affirmative consent: Did the person express clear words indicating agreement for sexual acts?
2. Freely given consent: Was the consent offered of the person’s own free will, without being induced by threats, manipulation, physical or emotional violence?
3. Capacity to consent: Did the individual have the capacity, or legal ability, to consent?

Capacity to consent

A person’s capacity, or ability, to legally consent to a sexual activity can be based on a number of factors, which often vary from state to state. In a criminal investigation, these factors will be used to determine if a person who engaged in a sexual activity had the capacity to consent. If it is proven that it had not, the perpetrator may be charged with a crime. Examples of factors that may contribute to someone’s capacity to consent include:

• Age: Is the person at or above the age of consent? Does the age difference between the perpetrator and victim can affect the capacity of the latter to give consent?
• Developmental disability: Does the person have a mental disability or another form of mental incapacitation, such as a traumatic brain injury?
• Intoxication with drugs or alcohol: Was the person under the influence of drugs or alcohol? Moreover, it matters whether that person voluntarily or involuntarily became intoxicated with substances.
• Physical disability: Does the person have a physical disability, incapacity, or another form of helplessness?
• Relationship between the victim and the perpetrator: Was the alleged perpetrator in a position of authority, such as a teacher or a parent?
• Unconsciousness: Was the person sleeping, sedated, strangulated, or suffering from other physical trauma?
• Vulnerable adults: Is the person considered a vulnerable adult, such as an elderly or ill person? Is this adult dependent on others for care?

How can we help

If you want to talk about sexual violence with a professional ready to help, send an email to: suport@visromania.eu