Consent as a Criminal Defense

Due to recent events related to the “Me too” movement, consent has become a major topic in the media. While there is a common sense understanding of what consent means, it can be a tricky issue in the legal world.

In a criminal case, the prosecution has to prove the victim was opposed to illegal activity or crime. A possible defense to a criminal act may be the victim consented to the act, and thus the act cannot constitute as a crime. There is a famous maxim, volante non fit injuria, meaning “a person is not wrong by that to which he consents.”
When Consent Applies in Criminal Cases-in General
Because sex crimes like rape or sexual assault require that the victim did not consent to the sexual activity, consent as a defense, whether explicitly expressed or implied, can apply to the case.

Consent may also be available as a defense to assault/battery charges. Self-defense is a more common defense relating to assault and battery charges, but speaking generally, should an individual consent voluntarily to an act, that same act cannot constitute as assault and battery. A more common example would be when two people agree to fight one another.

However, harmful acts, even when consent is given, can still be punishable under assault/battery, or other kinds of criminal laws, depending on the crime and the circumstances.

Establishing Consent

The first step in establishing consent is analyzing whether the person giving consent is legally capable of doing so. Those who are unable to give consent include the following:

• A minor (under the age of 18 in Utah; this may be different if both the victim and defendant are minors)
• A person who has a mental disorder
• A person intoxicated or otherwise too impaired to make a sensible judgment.

If the case does not involve the above individuals then you must analyze whether the consent was rational (informed) and voluntary (freely given).

The sticking point for many rape cases involve whether the consent was implied or expressed. When it is implied, it is often very difficult to prove consent. One must consider all of the circumstances to make a proper analysis. For example, men often cite to the woman’s invitation to her home and apparent willingness to kiss and touch as clear signs of consent. However, these things alone do not constitute consent, and there will likely be a fierce debate in court as to when the defendant crossed the line.

These are extremely tricky issues that must be analyzed by an experienced attorney.

Looking for A Defense Attorney in the Salt Lake City Area?

Different defenses may be available, but what applies depends entirely on the circumstances and details of your case. The experienced criminal defense attorneys at Liberty Law are ready and willing to help you craft a powerful defense. We will work to ensure the best possible outcome whether you are facing charges related to rape or sexual assault. Call Liberty Law today to schedule a free consultation today.