Over the last two decades, a lot has changed and been clarified as it applies to consent and sexual contact. However, some things have led to lines being blurred, including the widespread popularity of alcohol and recreational drugs, increased social acceptance of open relationships and fluid sexuality, and the use of digital technology and social media. More and more people are finding themselves facing legal trouble for what they thought were completely legitimate sex acts. In today’s post, we are going to explore some of the aspects of consent that may affect your case.
At the Law Offices of Murphy and Price, LLP, we have been helping defend the residents and service members in the Colorado Springs area for nearly two decades. We have seen our fair share of defendants come to us facing criminal sex charges that had the potential to have severe, longlasting effects on their futures. We take every case seriously and begin building a defense at your consultation.
Before we can really dive into how lines may be blurred and the situations many people find themselves in, we really need to take a step back and clearly define what consent is and what it means to have consensual sex. The law is very clear and seeks to mitigate the “he said, she said” defense tactics used in previous decades.
Consent is a freely given affirmative expression of the desire to have legal sex. What this means is the person you are attempting to engage in any sex act must explicitly say “yes!” Consent cannot be implied, coerced, or assumed. The absence of a “no” does not constitute consent. Any illegal sex act cannot be consented to, for instance, underage sex or sex with someone you hold authority over. Consent must be given to every act, every time. It cannot be assumed that because you had consent one time that you do again, and this includes with your intimate partner.
Common Ways People Find Themselves in Trouble
Although the concept of consent seems fairly straightforward, people still find themselves facing criminal sex offense charges for things they thought were appropriate. Things can get pretty hairy when words like “rape” and “sexual assault” are thrown around after an encounter that seemed legitimate. Here are some of the common ways people find themselves in trouble.
Unable to Provide Consent
As we briefly discussed and the table above shows, there are some situations in which a person may enthusiastically say “yes please!” and it is still not okay to proceed. For instance, if either party is under the influence of drugs or alcohol (to include recreational cannabis), consent cannot be given by either party. If a person is sleeping or unconscious, even if they consented to a sex act before passing out, they are no longer able to provide consent and any explicit consent is revoked. If a person is mentally incapacitated, including developmentally delayed or suffering from a mental illness, they cannot consent. For those who are underage, regardless of whether they consent, the law states that they cannot consent; and, the defense of “they said they were 18” does not count. For any protected person or a person whom you hold authority over cannot consent; this includes employees, students, prisoners, and patients.
It is this category that lands a lot of people in hot water. Expressed consent was clearly given, and in some cases, the other party even pursued the accused. However, because consent was legally not able to be given, accusations of sexual assault are common.
Another common way that people find themselves facing sexual assault charges is when intimate partners and spouses are involved. It is important to understand that your significant other does not owe you sex and just because you are in a relationship, this does not grant you consent. Every sex act must be consented to, every time. Yes, even if you have been married for 20 years and have performed the same sex act every night for the previous 20 years. Spousal rape is becoming a more common accusation and can dramatically change the outcome of a divorce as well as leave you facing criminal sex charges.
We discussed previously that the inclusion of alcohol and drugs completely voids the ability for either party to consent. Additionally, for casual hookups, close dancing, suggestive gesturing, innuendos, provocative dressing, “come hither eyes,” and even touching, grinding, or kissing, is not consent for sex acts. You must obtain expressed, enthusiastic consent before attempting to engage in sexual activity.
Unauthorized Photos or Recording
So, they consented to the sex acts, and you are still facing criminal charges, what gives? It is important to understand that each part of the sex act must be consented to and that includes any photos, voice recording, or video recording. You cannot record someone without their knowledge, even if they consented to the sex act that you are engaging in in the video. You cannot take images without the person in the image knowing, even if it does not include their faces. You may find yourself facing criminal sex felonies if you record or take images of someone without their consent.
At the Law Offices of Murphy & Price, LLP, we can help sort out the issue of consent and what happened in your recent encounter that is now being called into question. Don’t let terms like “perpetrator,” aggressor,” “rape,” or “sexual assault” end up on your permanent record or tarnish your name. Contact us for your complimentary consultation, and let us begin building your defense today.