Consent as a Defense to Rape: What Does it Really Mean?
Any forceable sexual contact with someone against their will and without consent is sexual battery or rape. Most people know that basic definition. But what many people don’t understand is consent, and what it actually means in terms of being a solid, viable defense to allegations of sexual battery or rape.
Consent in terms of sexual contact with minors is easy to understand—there is no consent, and any consent given is invalid—that is, consent is not a recognized defense to sexual contact against a minor.
But what about adults? Our Louisiana sex crime defense attorney will explain more.
Who Can Give Valid Consent and When?
You probably know that someone who is physically unable to do so can never consent. The same goes for those who are mentally incapacitated, or who cannot communicate, whether that condition is permanent or temporary. Additionally, any sexual contact that is a result of consent because of force, intimidation, or threats is also not valid consent.
The Role of Alcohol or Drugs
Many people think that an adult who has had a glass of alcohol cannot legally and validly consent to sexual contact, or that an adult who is on medication or even illegal drugs cannot consent. However, the law isn’t that exact; there is no such perfect test to determine whether consent is valid or not.
Certainly, someone who is intoxicated, and thus, not able to appreciate the nature of what he or she is doing, or else, not able to intelligently and knowingly give consent, cannot give consent, no matter what words come out of the alleged victim’s mouth.
That means that the question is not necessarily if someone has had a drink, or if they have drugs in their system—although that is certainly relevant evidence—the question is whether the person was conscious and lucid and aware enough to give valid consent.
That may vary depending on the situation; we all know people who are perfectly conscious and aware after 3 or 4 drinks, but we also know people who, after 1 drink, do not appreciate who they are or where they are.
One good question to ask to see if consent is valid is, could the alleged victim have left the situation and avoided the sexual contact if he or she had wanted to? If the answer is yes, the consent may be valid, but if it is no, then the consent given is likely not valid.
Intimidation and Threats
Intimidation can lead to consent, but of course, intimidation (in the absence of clear verbal threats) can be difficult to prove for an alleged victim and can be very subjective.
The law does look at the situation, which might include the sizes of both parties, the setting, and the relationship between the parties (for example, where one party is in a position of authority or power—if so, that would negate any consent given).
You Didn’t Know
You can allege as a defense that you relied on the consent given because you had no idea that someone was intoxicated, and that you could not have known and should not have known that the victim could not give valid consent. Whether that is valid or not will be for a jury to decide.
Contact the Law Offices of Philip B. Adams today. We are top-rated, relentless, and aggressive Louisiana criminal defense lawyers. Complete our "Contact Us" page here. You may significantly benefit by having an attorney with legal competence and experience assist you with your Louisiana criminal case. We have offices in Shreveport and handle criminal defense cases throughout Louisiana.