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Consent Laws
Last Updated: April 2023
| State | How is Consent Defined? | Does the definition require "freely given consent" or "affirmative consent"? | At what age is a person able to consent? | Does developmental disability and/or mental incapacity impact the victim���s ability consent? | Does consciousness impact the victim���s ability consent? | Does intoxication impact the victim���s ability to consent? | Does the relationship between the victim and actor impact the victim���s ability to consent? |
| Alabama | Consent has been interpreted to mean “acquiescence or compliance [with the proposition of another].” Ex parte Gordon, 706 So. 2d 1160, 1163 (Ala. 1997). Lack of consent results from:
In addition, “Consent to engage in sexual intercourse, sodomy, sexual acts, or sexual contact may be communicated by words or actions. The existence of a current or previous marital, dating, social, or sexual relationship with the defendant is not sufficient to constitute consent. Evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device or sexually transmitted disease protection, without additional evidence of consent, is not sufficient to constitute consent.” 1. Ala. Code § 13A-6-70(d). “Forcible compulsion” means use or threatened use, whether express or implied, of physical force, violence, confinement, restraint, physical injury, or death to the threatened person or to another person. Factors to be considered in determining an implied threat include the respective ages and sizes of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination, or custodial control over the victim, or whether the victim was under duress. Forcible compulsion does not require proof of resistance by the victim. Ala. Code § 13A-6-60(1). Existence of forcible compulsion is conclusive presumptive evidence of lack of consent, but lack of consent can also exist without forcible compulsion. Ex parte Gordon, 706 So.2d 1160, 1163 (Ala.1997). |
No. Ala. Code § 13A-6-70. |
16 years old, subject to a close in age exception. Ala. Code § 13A-6-70(c). |
No. Ala. Code § 13A-6-70. |
Yes, a person is deemed incapable of consenting if he or she is incapacitated. Ala. Code § 13A-6-70(c). “Incapacitated” means (among other things) that a person is unable to give consent or unable to communicate an unwillingness to an act because the person is unconscious, asleep, or is otherwise physically limited or unable to communicate. Ala. Code § 13A-6-60(2)(c). |
Yes, a person is deemed incapable of consenting if he or she is incapacitated. Ala. Code § 13A-6-70(c). “Incapacitated” means (among other things) that a person is temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance and the condition was known or should have been reasonably known to the offender. Ala. Code § 13A-6-60(2)(b). |
Yes, in certain cases:
Consent is not an element of the crime of incest for engaging in sexual intercourse with a family member (meaning the crime of incest occurs whether or not the parties consented to the act). Ala. Code § 13A-13-3. |
| Alaska | “Without consent” means that, under the totality of the circumstances surrounding the offense, there was not a freely given, reversible agreement specific to the conduct at issue; in this paragraph, “freely given” means agreement to cooperate in the act was positively expressed by word or action. Alaska Stat. § 11.41.470(10). The phrase “without consent” in statute refers to a particular type of unwanted sexual activity: unwanted sexual activity that is coerced by force or the threat of force. Inga v. State, 440 P.3d 345, 349 (Alaska Ct. App. 2019). |
Yes. Alaska Stat. § 11.41.470(10). |
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No. |
Yes, “without consent” means that, under the totality of the circumstances surrounding the offense, there was not a freely given, reversible agreement specific to the conduct at issue; in this paragraph, "freely given" means agreeemnt to cooperate in the act was positively expressed by word or action. Alaska Stat. § 11.41.470(10). In addition, sexual assault includes sexual penetration or contact with a person who is incapacitated. Alaska Stat. § 11.41.420(a)(3)(B) and § 11.41.425(a)(1). “Incapacitated” means temporarily incapable of appraising the nature of one’s own conduct or physically unable to express unwillingness to act. Alaska Stat. § 11.41.470(2). An individual that is unconscious would be both incapable of appraising the nature of one’s own conduct or physically unable to express unwillingness to act. Pursuant to King v. State, 978 P.2d 1278 (Alaska Ct. App. 1999), a person who is asleep is incapacitated. In addition, lack of consent is not an element for many crimes where an individual would be unaware that a sexual act is being committed (meaning the offender is responsible regardless of whether the victim consented):
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The Alaska Statute does not directly address intoxication, but intoxication that causes an individual to be “unaware that a sexual act is being committed” may invalidate consent. |
Yes, there are several relationships between offender and victim for which consent is unavailable as a defense, including:
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| Arizona | “Without consent” includes any of the following:
Arizona Revised Statute § 13-1401(A)(7). |
No. |
18 years old; or 15 years old if the defendant is under 19 years old or attending high school and is no more than two years older than the victim. Arizona Revised Statute § 13-1405(A), 13-1407(E). |
No. |
Yes, a victim can be incapable of consent by reason of sleep or any other similar impairment of cognition as long as such condition is known or should have reasonably been known to the defendant. Arizona Revised Statute § 13-1401(A)(7)(b). |
Yes, a victim can be incapable of consent by reason of drugs, alcohol or any other similar impairment of cognition as long as such condition is known or should have reasonably been known to the defendant. Arizona Revised Statute § 13-1401(A)(7)(b). |
Yes, for certain crimes. Spousal status is a defense to a prosecution for sexual abuse under section 13-1404 or sexual conduct with a minor under section 13-1405 if the person was the spouse of the other person at the time of the commission of the act. Spousal status is not a defense for sexual assault under section 13-1406. Arizona Revised Statute § 13-1407(D). In addition:
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| Arkansas | There is a lack of consent if a person engages in a sexual act with another person by forcible compulsion or with a person who is incapable of consent because he or she is physically helpless, mentally defective or mentally incapacitated, or because of a victim’s age. Arkansas Code §§ 5-14-103; 5-14-125.
The existence of forcible compulsion in a rape case does not depend on the quantum of force that is applied but rather on whether the act is consummated against the victim’s will. Hillman v. State, 569 S.W.3d 372 (Arkansas 2019). |
No. |
Generally, 16 years old, subject to various close-in-age exemptions (see below). Arkansas Code § 5-14-127(a)(1). |
No. |
Yes, a person that is unconscious is deemed “physically helpless” and unable to give consent. Arkansas Code § 5-14-101(8)(A). |
Yes, a person that is temporarily incapable of appreciating or controlling the person’s conduct as a result of the influence of a controlled or intoxicating substance:
is deemed “mentally incapacitated” and unable to give consent. Arkansas Code § 5-14-101(6). |
Yes, in a prosecution for non-forcible rape and sexual assault in the first through third degree, the victim cannot consent if certain relationships, listed below, exist between the victim and offender. These include:
Arkansas Code §§ 5-14-103; 5-14-124; 5-14-125; 5-14-126; 5-14-127. Criminal liability is not typically imposed where the actor commits any degree of sexual assault on his or her spouse (other than with respect to forcible compulsion). Arkansas Code §§ 5-14-124(a)(1); 5-14-125; 5-14-126(a); 5-14-127(a)(1). |
| California | “Consent” is defined to mean positive cooperation in act or attitude pursuant to the exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. California Penal Code § 261.6. |
Yes. California Penal Code § 261.6. |
18 years old. California Penal Code § 261.5. |
No. |
Yes, the accused is guilty of rape if engaging in an act of sexual intercourse where the other person is at the time unconscious of the nature of the act and it is known to the accused. California Penal Code § 261(a)(4)(A). “Unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:
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Yes, the accused is guilty of rape if engaging in an act of sexual intercourse where the other person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. California Penal Code § 261(a)(3). |
Yes, a minor is capable of consenting to sexual intercourse with an adult who is the minor’s spouse. California Penal Code § 261.5(a). However, a current or previous dating or marital relationship is not sufficient to constitute consent if consent is at issue in a prosecution for rape. 261.6(b). |
| Colorado | “Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship is not sufficient to constitute consent. Submission under the influence of fear does not constitute consent. Colorado Revised Statutes Annotated § 18-3-401(1.5). |
No. |
17 years old, subject to certain close-in-age exemptions (described below). Colorado Revised Statutes Annotated § 18-3-402(1)(d)-(e). |
No. |
Yes, unconsciousness falls within the definition of “physically helpless” and therefore the actor may be guilty of sexual assault and/or unlawful sexual contact when the victim is unconscious and the actor knows the victim is unconscious and the victim has not consented. Colorado Revised Statutes Annotated § 18-3-401. In addition, the sexual assault statute prohibiting sexual intrusion or penetration if actor knows that victim is incapable of appraising nature of victim's conduct may extend to victims who are partially asleep. People v. Platt, 170 P.3d 802 (Colo. App. 2007). |
Yes, any actor who knowingly subjects a victim to sexual contact commits unlawful sexual contact if the actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant, or other means for the purpose of causing submission. Colorado Revised Statutes Annotated § 18-3-404(1)(d). In addition, in People In Interest of G.B., 2018 WL 2436823 (Colo. App. 2018), the court held that evidence that a sexual assault victim was intoxicated during sexual intercourse, and was for that reason incapable of appraising nature of her conduct, was sufficient to support a sexual assault conviction. |
Yes.
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| Connecticut | Lack of consent to sexual activity exists where:
“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling such person’s conduct owing to the influence of a drug or intoxicating substance administered to such person without such person’s consent, or owing to any other act committed upon such person without such person’s consent. Connecticut General Statutes Annotated § 53a-65(5). “Impaired because of mental disability or disease” means that a person suffers from a mental disability or disease which renders such person incapable of appraising the nature of such person’s conduct. Connecticut General Statutes Annotated § 53a-65(4). “Physically helpless” means that a person is unconscious or for any other reason is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact. Connecticut General Statutes Annotated § 53a-65(6). |
No. |
16 years old. Connecticut General Statutes Annotated § 53a-71. |
No. |
Yes, “physically helpless” means that a person is unconscious or for any other reason is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact. Connecticut General Statutes Annotated § 53a-65(6). |
Yes, “mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling such person’s conduct owing to the influence of a drug or intoxicating substance administered to such person without such person’s consent. Connecticut General Statutes Annotated § 53a-65(5). In addition, a victim may be considered “physically helpless” if he or she is unable to communicate lack of consent because the victim is heavily intoxicated. State v. Davis, 180 Conn. App. 799, 807, 185 A.3d 654, 659, cert. denied, 328 Conn. 941, 184 A.3d 760 (2018) |
For the purpose of sexual crimes, except an offense under section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, it shall be an affirmative defense that the defendant and the alleged victim were, at the time of the alleged offense, living together by mutual consent in a relationship of cohabitation, regardless of the legal status of their relationship. Connecticut General Statutes Annotated § 53a-67(b). A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and:
Connecticut General Statutes Annotated § 53a-71. |
| Delaware | “Without consent” means any of the following:
Note: “health professional” includes all individuals who are licensed or who hold themselves out to be licensed or who otherwise provide professional physical or mental health services, diagnosis, treatment or counseling and shall include, but not be limited to, doctors of medicine and osteopathy, dentists, nurses, physical therapists, chiropractors, psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors, marriage and family counselors or therapists and hypnotherapists. Note: “cognitive disability” means a developmental disability that substantially impairs an individual's cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. “Cognitive disability” also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation. 11 Delaware Code § 761. |
No. |
18 years old, but 16 and 17 year-olds may consent to intercourse if the other partner is younger than 30. 11 Delaware Code §§ 770(a) (1)-(2). If the victim is at least 12 years old and the defendant is no more than 4 years older than the victim, it is an affirmative defense if the victim consented to the act “knowingly”. 11 Delaware Code §§ 761(1) and 762(d). A person acts “knowingly” with respect to an element of an offense when: (1) If the element involves the nature of the person's conduct or the attendant circumstances, the person is aware that the conduct is of that nature or that such circumstances exist; and (2) If the element involves a result of the person's conduct, the person is aware that it is practically certain that the conduct will cause that result. 11 Delaware Code § 231(c). |
No. |
Yes, there is no consent if the defendant knew the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed. 11 Delaware Code § 761(k)(2). |
It can, but not in all circumstances. There is no consent if the defendant has substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance. 11 Delaware Code § 761(k)(5). |
Yes.
11 Delaware Code § 761(e) and § 761(e)(4). |
| District of Columbia | “Consent” means words or overt actions indicating a freely given agreement to the sexual act or contact in question. Lack of verbal or physical resistance or submission by the victim, resulting from the use of force, threats, or coercion by the defendant shall not constitute consent. D.C. Code § 22-3001(4). “Force” means the use or threatened use of a weapon; the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim. D.C. Code § 22-3001(5). |
Yes. Consent to the sexual act or contact in question must be freely given agreement. D.C. Code § 22-3001(4). |
16 years old. D.C. Code § 22-3001(3). |
No. |
Yes. A person is unable to consent to engaging in a sexual act if such person is:
D.C. Code §§ 22-3003(2)(A)-(C), 22-3005(2)(A)-(C). |
Yes. A victim’s ability to consent is impacted by his/her intoxication due to a drug, intoxicant, or other similar substance that substantially impairs the ability of that other person to appraise or control his or her conduct, given involuntarily or unknowingly given to the victim by the accused. D.C. Code § 22-3002, 22-3004(4). |
Yes. Sexual Abuse of a Minor:
“Significant relationship” includes:
Sexual Abuse of a Secondary Education Student:
Sexual Abuse of a Ward:
Sexual Abuse of a Patient or Client:
D.C. Code §§ 22–3015, 22-3016. |
| Florida | “Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. “Consent” shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender. Florida Statutes § 794.011. |
Yes – the statute requires that consent be “voluntary”. |
18 years old, subject to a close-in-age exception. Florida Statutes §§ 794.011; 794.05. |
No, but it can impact the offenses. See e.g., Florida Statutes § 825.1025 (providing that a person who commits lewd or lascivious battery on an elderly person constitutes a second degree felony if the offender knows or reasonably should know that the elderly person lacks the capacity to consent). |
Yes, a person that is physically helpless or mentally incapacitated may not be able to provide intelligent, knowing, and voluntary consent. “Physically helpless” means unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act. Florida Statutes § 794.011(1)(f). “Mentally incapacitated” means temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent. Florida Statutes § 794.011(1)(d). |
Yes, a person that is mentally incapacitated may not be able to provide intelligent, knowing, and voluntary consent. “Mentally incapacitated” means temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent. Florida Statutes § 794.011(1)(d). In addition, a victim’s voluntary intoxication, depending on the facts, can lead to a finding of physical helplessness or physical incapacitation such that the victim may not give consent. Arroyo v. State, 252 So. 3d 374, 379 (Fla. Dist. Ct. App. 2018). |
A person cannot consent to sexual activity with a law enforcement officer, correctional officer, or correctional probation officer, who is certified or is an elected official exempt from such certification or any other person in a position of control or authority in a probation, community control, controlled release, detention, custodial, or similar setting, and such officer, official, or person is acting in such a manner as to lead the victim to reasonably believe that the offender is in a position of control or authority as an agent or employee of government. Florida Statutes § 794.011(4)(e)(7). A person less than 18 years of age cannot consent to engage in conduct which would constitute sexual battery with a person who is in a position of familial or custodial authority. Florida Statutes § 794.011(8). “Sexual battery” means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. Florida Statutes § 794.011(1)(j). |
| Georgia | The State of Georgia does not define consent in reference to sexual activity. The offense of rape occurs when it is against “a female forcibly and against her will.” Georgia Code § 16-6-1. The phrase “against her will” means without consent. Wightman v. State, 289 Ga.App. 225, 656 S.E.2d 563 (2008). |
No. |
16 years old. Georgia Code § 16-6-3(a). |
No. |
Yes, a victim whose will is temporarily lost due to unconsciousness arising from use of drugs or other cause, or sleep is unable to consent to sexual activity. Gore v. State, 119 Ga. 418 (1904); Evans v. State, 67 Ga. App. 631 (1942). |
Yes, a victim whose will is temporarily lost from intoxication, arising from use of drugs or other cause, is unable to consent to sexual activity. Gore v. State, 119 Ga. 418 (1904); Evans v. State, 67 Ga. App. 631 (1942). |
Yes.
Consent is not a defense to offenses under section 16-6-5.1. |
| Guam | Consent means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the victim or that the victim failed to resist a particular sexual act. 9 G.C.A. § 25.10(a)(2). A person who is mentally incapacitated or physically helpless as defined by the Guam statute cannot consent to a sexual act. 9 G.C.A. § 25.10(a)(2)(A). Corroboration of the victim's testimony is not required to show lack of consent. 9 G.C.A. § 25.10 (a)(2)(B). A victim need not resist the actor for a proper prosecution. 9 G.C.A. § 25.45. |
Yes – “consent” means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. 9 G.C.A. § 25.10(a)(2). |
16 years old. 9 G.C.A. §§ 25.15; 25.20; 25.25. |
No. |
Yes. A person commits a sex crime if the person engages in sexual penetration (or in certain circumstances, sexual contact) with another person and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness. 9 G.C.A. §25.10(a)(6); 25.15; 25.20; 25.25; 25.30. |
Yes. A person commits a sex crime if the person engages in sexual penetration (or in certain circumstances, sexual contact) with another person and the actor knows or has reason to know that the victim is mentally incapacitated, which includes a person that is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without his or her consent or a person that is voluntarily under the influence of any substance or substances to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person's conduct.. 9 G.C.A. § 25.10(a)(5); 25.15; 25.20; 25.25; 25.30. |
No. |
| Hawaii | Consent is not defined by statute. However, Hawaii law provides that a person commits a sex crime if:
“Compulsion” means absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss. HRS § 707-700. “Mentally defective” means a person suffering from a disease, disorder, or defect which renders the person incapable of appraising the nature of the person’s conduct. HRS § 707-700. “Mentally incapacitated” means a person rendered temporarily incapable of appraising or controlling the person’s conduct as a result of the influence of a substance administered to the person without the person’s consent. HRS § 707-700. “Physically helpless” means a person who is unconscious or for any other reason physically unable to communicate unwillingness to an act. HRS § 707-700. See also: “Consent signifies voluntary agreement or concurrence . . . [c]onsent may be express or implied.” State v. Adams, 10 Haw. App. 593, 605, 880 P.2d 226, 234 (1994). Evidence that victim rebuffed offender’s sexual advances by repeatedly telling offender to stop, attempting to pull way, and telling offender that she did not want to be touched was sufficient to establish absence of consent. State v. Jackson, 81 Haw. 39, 46, 912 P.2d 71, 78 (1996). |
Not in statute, though please see State v. Adams above for more information. |
16 years old. HRS §§ 707-730; 707-731; 707-732. |
No. |
Yes. A person commits a sex crime if the person knowingly subjects to a sexual act another person who is physically helpless, which includes a person who is unconscious. HRS §§ 707-700; 707-730; 707-731; 707-732. |
Yes. A person commits a sex crime if the person subjects to a sexual act another person who is mentally defective or mentally incapacitated, which includes a person who is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a substance administered to the person without the person’s consent. HRS § § 707-700; 707-730; 707-731; 707-732. |
Yes.
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| Idaho | Consent is not specifically defined. However, Idaho law references consent in its definition of certain circumstances that constitute “rape”. Rape is defined as “the penetration, however slight, of the oral, anal or vaginal opening with a penis” accomplished under any one of the following circumstances:
Idaho Statutes § 18-6101. |
No. |
18 years old. Idaho Statutes §§ 18-6101. |
No. |
Yes. A person commits a sex crime if the victim at the time is unconscious of the nature of the act due to being:
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Yes. A person commits a sex crime if the victim is unable to resist due to any intoxicating, narcotic, or anesthetic substance. Idaho Statutes § 18-6101(5). |
Yes.
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| Illinois | “Consent” means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent. 720 ILCS 5/11-0.1. A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct. 720 ILCS 5/11-1.70. “The focus is on what the defendant knew or reasonably should have known regarding the victim’s willingness or ability to give knowing consent.” People v. Roldan, 2015 IL App (1st) 131962, ¶ 19. “Unable to give knowing consent” includes when the accused administers any intoxicating or anesthetic substance, or any controlled substance causing the victim to become unconscious of the nature of the act and this condition was known, or reasonably should have been known by the accused. “Unable to give knowing consent” also includes when the victim has taken an intoxicating substance or any controlled substance causing the victim to become unconscious of the nature of the act, and this condition was known or reasonably should have been known by the accused, but the accused did not provide or administer the intoxicating substance. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:
A victim is presumed “unable to give knowing consent” when the victim:
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Yes, it requires “freely given agreement” to the act of sexual penetration or sexual conduct in question. 720 ILCS 5/11-0.1. |
17 years old. 720 ILCS 5/11-1.60. However, if the actor is 17 years of age or older and holds a position of trust, authority, or supervision in relation to the victim, then the age of consent is 18 years old. |
No. However, the crime and punishment is more severe if the victim is 60 years of age or older. 720 ILCS 5/11-1.30; 720 ILCS 5/11-1.60. |
Yes. See definitions above of “unable to give knowing consent” and “unconscious of the nature of the act.” 720 ILCS 5/11-0.1. A person commits a sex crime if that person knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. 720 ILCS 5/11-1.20; 720 ILCS 5/11-1.50. |
Yes. See definitions above of “unable to give knowing consent” and “unconscious of the nature of the act.” 720 ILCS 5/11-0.1. A person commits a sex crime if that person knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. 720 ILCS 5/11-1.20; 720 ILCS 5/11-1.50. In addition, the crime and punishment is more severe if the accused delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim’s consent or by threat or deception for other than medical purposes. 720 ILCS 5/11-1.30; 720 ILCS 5/11-1.60. |
Yes. A victim is presumed “unable to give knowing consent” when the victim:
A person commits custodial sexual misconduct when:
Also, a probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or aftercare specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or releasee, or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration. 720 ILCS 5/11-9.2. The consent of the probationer, parolee, releasee, inmate in custody of the penal system or person detained or civilly committed under the Sexually Violent Persons Commitment Act, or person in the custody of a law enforcement agency or employee shall not be a defense to a prosecution under section 5/11-9.2. A person is deemed incapable of consent, for purposes of section 5/11-9.2 when he or she is a probationer, parolee, releasee, inmate in custody of a penal system or person detained or civilly committed under the Sexually Violent Persons Commitment Act, or a person in the custody of a law enforcement agency or employee. 720 ILCS 5/11-9.2. In addition, a person commits sexual misconduct with a person with a disability when:
A person commits criminal sexual assault or aggravated sexual abuse with a victim who is at least 13 years of age but under 18 years of age and the person is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim. 720 ILCS 5/11-1.20, 1.60. |
| Indiana | Consent is not specifically defined under the current law. However, Indiana law provides that a person commits a sex crime if: (1) the victim is compelled by force or imminent threat of force; (2) the victim is unaware that the sexual intercourse or other sexual conduct is occurring; (3) the victim is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct cannot be given; or (4) the person disregarded the victim’s attempts to physically, verbally, or by other visible conduct refuse the person’s acts. IC §§ 35-42-4-1; 35-42-4-8. Capacity to consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. Stafford v. State, 455 N.E.2d 402, 406 (Ind. Ct. App. 1983).
Consent of a woman from fear of personal violence is void. Parrett v. State, 200 Ind. 7, 159 N.E. 755, 760 (1928). |
No. |
16 years old. IC §§ 35-42-4-9. |
No. |
Yes. A person commits a sex crime if the other person is unaware that the sexual intercourse or other sexual conduct is occurring. IC §§ 35-42-4-1; 35-42-4-8. |
Yes, if the intoxication causes the victim to be unaware that the sexual intercourse or other sexual conduct is occurring. IC §§ 35-42-4-1; 35-42-4-8. In addition, the crime and punishment is more severe if the offense is facilitated by furnishing the victim, without the victim’s knowledge, with a drug or a controlled substance or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge. IC §§ 35-42-4-1; 35-42-4-3; 35-42-4-5; 35-42-4-8; 35-42-4-9. |
Yes. It is a defense to sexual misconduct with a minor if the child is or has ever been married, except where the sexual misconduct is committed by using or threatening the use of deadly force or by furnishing the victim, without the victim’s knowledge, with a drug or other controlled substance or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge. IC § 35-42-4-9. It also is a defense if the person is not more than 4 years older than the victim and the relationship between the person and the victim was a dating relationship or an ongoing personal relationship and the crime: was not committed by a person who is at least 21 years of age; was not committed by using or threatening the use of deadly force; was not committed while armed with a deadly weapon; did not result in serious bodily injury; was not facilitated by furnishing the victim, without the victim’s knowledge, with a drug or a controlled substance or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge; was not committed by a person having a position of authority or substantial influence over the victim; the person has not committed another sex offense against any other person; and the person is not promoting prostitution with respect to the victim. IC § 35-42-4-9. In addition, a person commits child seduction if:
IC § 35-42-4-7. A person has a professional relationship with a child if the person has a license issued by the state or a political subdivision on the basis of the person’s training and experience that authorizes the person to carry out a particular occupation; or is employed in a position in which counseling, supervising, instructing, or recruiting children forms a significant part of the employment; AND the person has a relationship with a child that is based on the person’s employment or licensed status as described in subdivision (1). IC § 35-42-4-7(i). See also Benner v. State, No. 18A-CR-2614, 2019 WL 3122467, at *3 (Ind. Ct. App. July 16, 2019) ([Section 35-42-4-7] clearly does not limit the criminal offense to a person who is currently in a professional relationship.) |
| Iowa | Consent is not specifically defined. However, Iowa law defines “sexual abuse” as any sex act between persons where:
I.C.A. § 709.1. The “against the will” element is deliberately broad and consciously designed to capture all circumstances when there is an actual failure of consent, including use of psychological force. See State v. Kelso-Christy, 911 N.W.2d 663, 667 (Iowa 2018). It is not necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other. I.C.A. § 709.5. |
No. |
16 years old. I.C.A. § 709.4. |
No. |
Yes. Sexual abuse is defined to include any sex act between persons that is done against the will of the other, which includes an act that is done while the other person is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness. I.C.A. § 709.1. In addition, a person commits a sex crime if:
“Physically helpless” means that a person is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited. I.C.A. §709.1A. |
Yes. See definitions above of mentally incapacitated, physically helpless, and physically incapacitated. A person commits sexual abuse in the third degree if:
|
Yes. If the sex act is between persons cohabitating as husband and wife at the time of the act and is done by force or against the will of the other person, it is sexual abuse in the third degree. I.C.A. § 709.4. I.C.A. § 709.8 provides a marriage exception for “lascivious acts with a child.” I.C.A. § 709.12 provides a marriage exception for “indecent contact with a child.” It is unlawful for a person of 18 years of age who is in a position of authority over a minor to force, persuade, or coerce a minor, with or without consent, to disrobe or partially disrobe for the purpose of arousing or satisfying the sexual desires of either of them. I.C.A. § 709.14. In addition, sexual exploitation by a counselor or therapist occurs when there is sexual conduct with:
Sexual exploitation by a school employee or an adult providing training or instruction occurs when there is sexual conduct with a student. I.C.A. § 709.15. Iowa also criminalizes sex acts by:
|
| Kansas | Consent is not specifically defined. However, Kansas law provides that a person commits rape when a person knowingly engages in sexual intercourse with a victim who does not consent under any of the following circumstances:
See also: The test for consent under that provision is whether the individual understands the nature and consequences of the proposed act. State v. Ice, 27 Kan. App. 2d 1, 4, 997 P.2d 737, 740 (2000). The Kansas rape statute does not require proof that the defendant intended to have nonconsensual intercourse. The statute requires proof that the defendant had sexual intercourse without the victim's consent when the victim was overcome by force or fear. State v. Plunkett, 261 Kan. 1024, 1030–31, 934 P.2d 113, 118 (1997). If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent. State v. Ice, 27 Kan. App. 2d 1, 5, 997 P.2d 737, 740 (2000). A person may be convicted of rape if intercourse begins consensually but consent is withdrawn after penetration and the intercourse continues by force or fear. State v. Flynn, 299 Kan. 1052, 1053, 329 P.3d 429, 430 (2014). The “force” required to sustain a rape conviction in this state does not require that a rape victim resist to the point of becoming the victim of other crimes such as battery or aggravated assault. The Kansas rape statute does not require the State to prove that a rape victim told the offender she did not consent, physically resisted the offender, and then endured sexual intercourse against her will. It does not require that a victim be physically overcome by force in the form of a beating or physical restraint. It requires only a finding that she did not give her consent and that the victim was overcome by force or fear to facilitate the sexual intercourse. State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261, 1271 (1994). |
No. |
16 years old. K.S.A. 21-5505; 5506; 5507*. *Note: KSA 21-5507 was held to violate the equal protection provisions of the Fourteenth Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights to the extent that it results in a punishment for unlawful voluntary sexual conduct between members of the opposite sex that is less harsh than the punishment for the same conduct between members of the same sex. The court struck the phrase “and are members of the opposite sex” from the statute. State v. Limon, 280 Kan. 275, 276, 122 P.3d 22, 24 (2005). |
No. |
Yes. A person commits a sex crime where the person otherwise meets the elements of the sex crime and the victim is unconscious or physically powerless. K.S.A. 21-5503. |
Yes. A person commits a sex crime where the person otherwise meets the elements of the sex crime and the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender. K.S.A. 21-5503. |
Yes. It is a defense to a prosecution of rape for engaging in sexual intercourse with a child who is under 14 years of age that the child was married to the accused at the time of the offense. K.S.A. 21-5503. It is a defense to a prosecution of criminal sodomy (for sodomy with a child 14 or more years of age but less than 16 years of age) and aggravated criminal sodomy (for sodomy with a child who is under 14 years of age) that the child was married to the accused at the time of the offense. K.S.A. 21-5504*. It is a defense to a prosecution of indecent liberties with a child (as defined in K.S.A. 21-5506 subsection (a)(1)) and aggravated indecent liberties with a child (as defined in subsections (b)(1), (b)(2)(A) and (b)(3)(A)) that the child was married to the accused at the time of the offense. K.S.A. 21-5506. *Note: K.S.A. 21–5504(a)(1) was held to be unconstitutional to the extent that it punished sex acts occurring between persons of the same sex but not persons of the opposite sex. The court held that the statute could not be enforced to the extent the statute contravenes liberty interests protected in the Due Process Clause of the Fourteenth Amendment. State v. Franco, 49 Kan. App. 2d 924, 319 P.3d 551 (2014). In addition, a person commits a sex crime when:
K.S.A. § 21-5512. It is a defense to each of the above offenses if the person is married to the offender. |
| Kentucky | “Lack of consent” results from:
A person is also “deemed incapable of consent” when he or she is
“Mental illness” means a diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) and any subsequent revision thereto, of the American Psychiatric Association. KRS § 510.010. “Individual with an intellectual disability” means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. KRS § 510.010. “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of an intoxicating substance administered to him or her without his or her consent or as a result of any other act committed upon him without his or her consent. KRS § 510.010. “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act as well as a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug. KRS § 510.010. Actual physical force is not needed to prove forcible compulsion and in determining whether a victim submitted because of an implied threat which placed him or her in fear, a subjective rather than an objective standard must be applied. Yarnell v. Com. (Ky. 1992) 833 S.W.2d 834, 836 (KY. 1992). |
No. |
A person is deemed incapable of consent when he or she is:
KRS § 510.020. |
No. |
Yes. A person is deemed incapable of consent when he or she is physically helpless, which includes unconsciousness. KRS §§ 510.010. |
Yes. A person is deemed incapable of consent when he or she is mentally incapacitated, which includes intoxication, or if the intoxication causes the person to be physically helpless. KRS §§ 510.010. |
Yes.
See also Stinson v. Com., 396 S.W.3d 900, 906 (Ky. 2013) (“a minor cannot consent to sexual contact from a person who is in a position of special trust or authority. Such behavior is sexual abuse in the first degree, and does not require an additional showing of lack of consent.”) |
| Louisiana | Consent is not defined. However, Louisiana law provides that a person commits a sex crime:
Further, a person is deemed incapable of consent when the person is under arrest or otherwise in the actual custody of a police officer or other law enforcement official and the offender is a police officer or other law enforcement official who either: (1) arrested the person or was responsible for maintaining the person in actual custody; (2) knows or reasonably should know that the person is under arrest or otherwise in actual custody. LSA-R.S. 14:41.1. |
No. |
17 years old. LSA-R.S. 14:80. |
No. |
Yes. The following are deemed to be without the lawful consent of the victim:
|
Yes. The following are deemed to be without the lawful consent of the victim:
|
Yes. It is a defense to a charge of sexual battery with a child under the age of 15 or carnal knowledge of a juvenile that the actor is the child’s spouse. LSA-R.S. 14:80; LSA-R.S. 14:80.1. Also, prohibited sexual conduct between an educator and a student is committed when:
A person is deemed incapable of consent when the person is under arrest or otherwise in the actual custody of a police officer or other law enforcement official and the offender is a police officer or other law enforcement official who either: (1) arrested the person or was responsible for maintaining the person in actual custody; or (2) knows or reasonably should know that the person is under arrest or otherwise in actual custody. LSA-R.S. 14:41.1. |
| Maine | “Consent” means a word or action by a person that indicates a freely given agreement. 17-A MRSA § 251 |
Yes. “Consent” means a word or action by a person that indicates a freely given agreement. |
16 years old. 17-A M.R.S.A. 254. |
Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and the actor is employed to provide care to a dependent person, who is not the actor's spouse or domestic partner and who is unable to perform self-care because of advanced age or physical or mental disease, disorder or defect. 17-A M.R.S.A. 253, 255-A, 260. |
Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual act. 17-A M.R.S.A. 253, 255-A, 260. |
Yes. A person is guilty of a sex crime if that person engages in a “sexual act” with another person and the actor has substantially impaired the other person's power to appraise or control the other person's sexual acts by furnishing, administering or employing drugs, intoxicants or other similar means. 17-A M.R.S.A. 253. Please note that the above only applies if the perpetrator provides the intoxicants to the victim, but says nothing about instances in which the victim voluntarily consumed alcohol, that was not provided by the perpetrator, prior to the assault. |
Yes.
|
| Maryland | Consent is not specifically defined. However, Maryland law provides that a person commits a sex crime if that person engages in “vaginal intercourse” or “sexual act” with another:
Evidence of physical resistance by the victim is not required. MD Code, Criminal Law, § 3-319.1 “Mentally incapacitated individual” means an individual who, because of the influence of a drug, narcotic, or intoxicating substance, or because of an act committed on the individual without the individual’s consent or awareness, is rendered substantially incapable of:
“Physically helpless individual” means an individual who:
“Substantially cognitively impaired individual” means an individual who suffers from an intellectual disability or a mental disorder, either of which temporarily or permanently renders the individual substantially incapable of:
Maryland law also provides that a person may not engage in sexual contact with another:
See also: In the case of a conscious and competent victim, mere passivity on the victim’s part will not establish the absence of consent. The law looks for express negation or implicit negation as evidenced by some degree of physical resistance or an explanation of why the will to resist was overcome by force or fear of harm. Travis v. State, 218 Md. App. 410, 428, 98 A.3d 281, 291 (2014). It is well settled that the terms “against the will” and “without the consent” are synonymous in the law of rape. State v. Rusk, 289 Md. 230, 241, 424 A.2d 720, 725 (1981). Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse. On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape. Battle v. State, 287 Md. 675, 684, 414 A.2d 1266, 1270 (1980). |
No. |
16 years old. MD Code, Criminal Law, § 3-308. |
No. |
Yes. A person may not engage in “vaginal intercourse,” a “sexual act,” or “sexual contact” with another if the victim is a substantially cognitively impaired individual or mentally incapacitated individual and the person performing the act knows or reasonably should know that the victim is a substantially cognitively impaired or mentally incapacitated individual. MD Code, Criminal Law, § 3-304; 3-307. |
Yes. A person may not engage in “vaginal intercourse,” a “sexual act,” or “sexual contact” with another if the victim is a mentally incapacitated individual, and the person performing the act knows or reasonably should know that the victim is a mentally incapacitated individual. MD Code, Criminal Law, § 3-304; 3-307 |
Yes. A person of authority may not engage in sexual intercourse, sexual contact, or a sexual act with a minor enrolled in the school or participating in the program where the person of authority works if the minor is at least 6 years younger than the person of authority. “Person of authority” includes persons over the age of 21 who work in schools and persons over the age of 22 who work at programs. “Program” means an individual, a business, a religious or faith-based institution, or an organization that provides, on a for-profit or nonprofit basis, instructional, coaching, recreational, spiritual, character-building, or supervisory services or activities for minors. MD Code, Criminal Law, § 3-308. A correctional employee (and other related employees such as an employee of a contractor providing goods and services to a correctional facility) may not engage in “sexual contact,” “vaginal intercourse,” or a “sexual act” with an incarcerated individual. MD Code, Criminal Law, § 3-314. A person may also not engage in “sexual contact,” “vaginal intercourse,” or a “sexual act” with an individual confined in a child care institution licensed by the Department of Juvenile Services, a detention center for juveniles, or a facility for juveniles. MD Code, Criminal Law, § 3-314. A court-ordered services provider may not engage in sexual contact, vaginal intercourse, or a sexual act with an individual ordered to obtain services while the order is in effect. MD Code, Criminal Law § 3-314. A law enforcement officer may not engage in sexual contact, vaginal intercourse, or a sexual act with a person:(i) who is a victim, witness, or suspect in an open investigation that the law enforcement officer is conducting, supervising, or assisting with if the law enforcement officer knew or should have known that the person is a victim, witness, or suspect in the investigation; (ii) requesting assistance from or responding to the law enforcement officer in the course of the law enforcement officer's official duties; or (iii) in the custody of the law enforcement officer, unless the law enforcement officer had a prior existing legal sexual relationship with the person; and did not act under the color or pretense of office or under color of official right when seeking consent for the sexual act. MD Code, Criminal Law § 3-314. |
| Massachusetts | Consent is not specifically defined. The standard in the sexual assault statutes is whether the accused compels the victim to submit by force and against his or her will, or compels such person to submit by threat of bodily injury. Mass. Gen. Laws. Ann. Ch. 265 §22. |
Not specified. |
16 to 18 years old depending on the crime below.
|
No. However, the punishment for indecent assault and battery on an elder (a person sixty years of age or older) is more severe. Mass. Gen. Laws. Ann. ch. 265, §13H. |
Yes, if the victim is so impaired as to be incapable of consenting to intercourse. Com. v. Blache, 880 N.E.2d 736, 743, 450 Mass. 583, 592 (2008). |
Yes, if such intoxication renders the person incapable of giving consent. Com. v. Urban, 880 N.E.2d 753, 450 Mass. 608 (2008). Fact of intoxication, by itself, does not necessarily mean that an individual is incapable of deciding whether to assent to a sexual encounter. Id. |
No. However, it is aggravated statutory rape (which carries a harsher punishment) for a person that is a “mandated reporter” at the time of the act to have sexual intercourse or unnatural sexual intercourse with a child under 16 years of age. Mass. Gen. Laws. Ann. ch. 265, §23A. “Mandated reporter” means a person who is:
Mass. Gen. Laws. Ann. ch. 119, §21. |
| Michigan | Consent is not specifically defined. The standard used in the sexual assault statutes is whether the accused used “force or coercion to accomplish the sexual [act].” Mich. Comp. Laws. Ann. § 750.520b – e. |
Not specified. |
16 years old, unless such person is employed at the victim’s school in which case the age of consent is 18 years old. Mich. Comp. Laws. Ann. § 750.520b – e. (notably (d)) |
No. |
Yes. A person is guilty of criminal sexual conduct if the person engages in sexual penetration or contact and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness. Mich. Comp. Laws. Ann. §§ 750.520b(1)(d)(i), 750.520c(1)(d)(i), 750.520d(1)(c), 750.520e(1)(c). “Physically helpless” means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act. Mich. Comp. Laws Ann. § 750.520a(m). |
Yes, if the intoxication is as a result of a narcotic, anesthetic or other substance administered to that person without his or her consent. See definition of “Mentally incapacitated” Mich. Comp. Laws. Ann. § 750.520a(k). |
Yes. Criminal sexual conduct in the third or fourth degree occurs if (1) the victim is at least 16 but less than 18 years of age or (2) the victim is at least 16 but less than 26 and is receiving special education services, and, in each case, is a student at a school where the actor is employed or volunteers. Mich. Comp. Laws Ann. § 750.520d & e. Criminal sexual conduct in the first or second degree occurs if the victim is at least 13 but less than 16 years of age and any of the following:
Mich. Comp. Laws Ann. § 750.520b & c. |
| Minnesota | "Consent" means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act. Further:
Minn. Stat. § 609.341(4). |
Yes, the definition requires words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. |
With respect to first or second degree criminal sexual misconduct:
With respect to third or fourth degree criminal sexual misconduct:
“Current or recent position of authority” includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of or within 120 days immediately preceding the act. This includes a psychotherapist. Minn. Stat. § 609.341(10). “Significant relationship” means a situation in which the actor is: (1) the complainant’s parent, stepparent, or guardian; (2) any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; (3) an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse; or (4) an adult who is or was involved in a significant romantic or sexual relationship with the parent of a complainant. Minn. Stat. § 609.341(15). |
No. |
Yes. A person who is physically helpless (which includes unconsciousness) cannot consent to a sexual act. Minn. Stat. § 609.341. It constitutes criminal sexual conduct if the actor commits sexual penetration or contact and knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless. Minn. Stat. §§ 609.342, 609.343, 609.344, 609.345. |
Yes, if such intoxication results in the victim becoming mentally incapacitated or physically helpless. But, see case law regarding voluntary intoxication discussed below.
|
Yes, a “significant relationship” or “current or recent position of authority” can affect the age of consent.
Minn. Stat. § 609.342, Minn. Stat. § 609.343.
Minn. Stat. § 609.344. A “prohibited occupational relationship” exists when the actor is in one of the following occupations and the act takes place under the specified circumstances:
Minn. Stat. § 609.341.
Minn. Stat. § 609.345.
|
| Mississippi | Not defined. |
Not specified. |
16 years old, unless (i) the other person is in a position of trust or authority over the child, in which case the age of consent is 18 years old or (ii) the other person is 36 or fewer months older than the victim, in which case the age of consent is 14. Miss. Code Ann. § 97-3-95, Miss. Code Ann. § 97-3-65. |
No. |
Yes, a person is guilty of sexual battery if he or she engages in sexual penetration with a physically helpless person, which includes a person that is unconscious. Miss. Code Ann. § 97-3-95. |
Yes, a person is guilty of sexual battery if he or she engages in sexual penetration is physically incapable of communicating an unwillingness to engage in an act, or (ii) a mentally incapacitated person, which includes a person who is rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, or other substance administered to that person without his or her consent. Miss. Code Ann. § 97-3-95.with (i) a physically helpless person, which includes a person who for any reason |
Yes. A person is guilty of sexual battery if he or she engages in sexual penetration with a child under 18 years of age if the person is in a position of trust or authority over the child, including, without limitation, the child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach. Miss. Code Ann. § 97-3-95(2); see also Miss. Code Ann. § 97-29-3 (making sex between teacher and a pupil under 18 punishable by fine to both parties and subjecting the teacher to imprisonment, with no mention of consent). |
| Missouri | Consent is not specifically defined. However, Missouri law provides that rape in the first degree is committed if the offender has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim’s knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse. Mo. Rev. Stat. § 566.030. |
No. |
14 years old. Mo. Rev. Stat. § 566.032 (statutory rape in the first degree). However, statutory rape in the second degree is defined as an actor 21 years old or older having sexual intercourse with another person who is less than 17 years old. Mo. Rev. Stat. § 566.034 (statutory rape in the second degree). |
No. |
Yes, a person commits the offense of rape in the first degree if he or she has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse. Mo. Ann. Stat. § 566.030. |
Yes, a person commits the offense of rape in the first degree if he or she has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse. Mo. Ann. Stat. § 566.030. |
Yes, a person commits the crime of sexual contact with a student if he or she has sexual contact with a student of a school and is:
It is not a defense that the student consented to the sexual contact. Mo. Rev. Stat. § 566.086. It is also a crime for sexual conduct to take place between: caretakers and nursing facility residents; mental health providers and vulnerable persons; and corrections officers and prisoners. Mo. Ann. Stat. §§ 566.115 & 566.145. |
| Montana | The term “consent” means words or overt actions indicating a freely given arrangement to have sexual intercourse or sexual contact and is further defined, but not limited by the following:
The victim is incapable of consent because the victim is:
Mont. Code Ann. § 45-5-501(1). |
Yes, consent is defined to mean words or overt actions indicating a '"freely given agreement" to have sexual intercourse or contact. Mont. Code Ann. § 45-5-501(1)(a). In addition, resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent. Mont. Code Ann. § 45-5-511(5). |
16 years old. Mont. Code Ann. § 45-5-501(1)(b)(iv). |
No, nothing in statutory or case law to suggest an impact. |
Yes. “Without consent” means the victim is incapable of consent because the victim is mentally disordered or incapacitated. Mont. Code Ann. § 45-5-501(1)(b)(i). |
Yes. Consent is ineffective if: it is given by a person who by reason of youth, mental disease, disorder, or intoxication is unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense. Mont. Code Ann. § 45-2-211(2)(b). |
Yes. For purposes of sexual intercourse without consent statute (Mont. Code Ann. § 45-5-503), “without consent” means the victim is incapable of consent because the victim is:
Mont. Code Ann. § 45-5-501(1)(b)((v),(vi), (vii). However, the above do not apply if the individuals are married, and (1) one of the individuals involved is on probation, conditional release, or parole and the other individual is a probation or parole officer of a supervising authority; or (2) one of the individuals involved is a patient in or resident of a facility, is a recipient of community-based services, or is receiving services from a youth care facility and the other individual is an employee, contractor or volunteer of the facility or community-based service. Mont. Code Ann. § 45-5-501(1)(c)-(d). Similarly, consent is ineffective under the sexual assault statute (Mont. Code Ann. § 45-5-502(5)) if the victim is:
Mont. Code Ann. § 45-5-502(5)(a). However, the above do not apply if the individuals are married. Mont. Code Ann. § 45-5-502(5)(b)-(c). Additionally, consent is ineffective under the sexual assault statute (Mont. Code Ann. § 45-5-501) if the victim is:
Mont. Code Ann. § 45-5-501(1(b)(viii)-(xi) |
| Nebraska | Consent itself is not defined, however “without consent” means:
Neb. Rev. Stat. §28-318(8). |
No. Neb. Rev. Stat. §28-318. |
16 years old. Any person who subjects another person to sexual penetration when the actor is 19 years of age or older and the victim is at least 12 but less than 16 years of age is guilty of sexual assault in the first degree. Neb. Rev. Stat. §28-319(1)(c). |
No, no statutory or case law suggests this impact. |
Yes. Any person who subjects another person to sexual penetration who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in the first degree. Neb. Rev. Stat. §28-319(1)(b). Any person who subjects another person to sexual contact who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree. Neb. Rev. Stat. §28-320(1)(b) |
Yes. Any person who subjects another person to sexual penetration who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in the first degree. Neb. Rev. Stat. §28-319(1)(b). Any person who subjects another person to sexual contact who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree. Neb. Rev. Stat. §28-320(1)(b). The evidence established that the victim was incapacitated by alcohol, and her assailant knew or should have known that she was mentally or physically incapable of resisting or appraising the nature of her conduct. State v. Freeman, 267 Neb. 737, 753 (2004). |
Yes, for:
Not for married spouses. There is also no “spousal-exclusion” to sexual assault charges. State v. Willis, 223 Neb. 844, 844 (1986). |
| Nevada | Consent is not defined by statute. However, it is an element of the crime of sexual assault that the crime was committed against the will of the victim. Nev. Rev. Stat. Ann. § 200.366. |
No. |
16 years old. Nev. Rev. Stat. Ann. § 200.366(3). |
No, there is no statutory or case law basis to suggest an impact. |
Yes. A person is deemed incapable of consent if he or she is “mentally or physically incapable of resisting or understanding the nature of his or her conduct.” Nev. Rev. Stat. Ann. § 200.366(1). |
Although there is no specific mention of intoxication in the statute, a person is deemed incapable of consent if he or she is “mentally or physically incapable of resisting or understanding the nature of his or her conduct.” Nev. Rev. Stat. Ann. § 200.366(1). |
|
| New Hampshire | The term consent is not defined by statute. |
Yes, for some crimes. A person commits aggravated felonious sexual assault if he or she engages in sexual penetration with a person that indicates by speech or conduct that there is not freely given consent to performance of the sexual act. N.H. Rev. Stat. Ann. § 632-A:2(I)(m). |
16 years old. N.H. Rev. Stat. Ann. § 632-A:3(II). |
No. |
Yes. Although not expressly mentioned in the statute, evidence that the victim was unconscious may support a conclusion that victim was physically unable to resist. State v. Grimes, 876 A.2d 753, 756 (2005). |
Yes. A person is deemed unable to consent if he or she is “mentally incapacitated” after being administered “any intoxicating substance,” without his or her knowledge or consent. N.H. Rev. Stat. Ann. § 632-A:2(I)(f). |
Yes.
|
| New Jersey | New Jersey’s criminal code includes a generally applicable definition of consent as follows:
N.J. Stat. Ann. § 2C:2-10. |
In order to establish effective consent by the putative victim of a sexual assault, a defendant must demonstrate the presence of “affirmative and freely-given permission....” State v. Cuni, 733 A.2d 414, 424, 159 N.J. 584, 603 (1999). |
16 years old. N.J. Stat. Ann. § 2C:14-2(c)(3). |
No. |
Yes, a person that is unconscious is physically helpless, and it is aggravated sexual assault to commit an act of sexual penetration with a person that the actor knew or should have known was physically helpless. N.J. Stat. Ann. § 2C:14-2(a)(7); N.J. Stat. Ann. § 2C:14-1(g). Consent is ineffective if:
N.J. Stat. Ann. § 2C:2-10 |
Yes, it is aggravated sexual assault to commit an act of sexual penetration with a person that the actor knew or should have known was mentally incapacitated, which includes when he or she is under the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent. N.J. Stat. Ann. § 2C:14-2(a)(7); N.J. Stat. Ann. § 2C:14-1(i). Consent is ineffective if:
N.J. Stat. Ann. § 2C:2-10 |
Yes. It is sexual assault to commit an act of sexual penetration with a person that is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status. N.J. Stat. Ann. § 2C:14-2(c)(2). An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person who is less than 13 years old, or if the victim is 13, 14, or 15 years old and the actor is:
N.J. Stat. Ann. § 2C:14-2(a)(2). It is sexual assault to commit an act of sexual penetration with a person that is at least 16 years old but less than 18 years old, and
(3) the actor is the victim’s guardian or otherwise stands in loco parentis. N.J. Stat. Ann. § 2C:14-2(c)(3). |
| New Mexico | New Mexico does not specifically define “consent.” However, New Mexico defines “force or coercion” as:
Physical or verbal resistance of the victim is not an element of force or coercion. New Mexico Statutes §30-9-10. |
No. |
16 years old. New Mexico Statutes §30-9-11G(1). Sexual intercourse with a 16-year-old does not constitute criminal sexual penetration under statute defining such crime as an unlawful and intentional intercourse “perpetrated on a child thirteen to sixteen years of age.” State ex rel. Children, Youth and Families Dept. v. Paul P., Jr., 1999, 127 N.M. 492, 983 P.2d 1011. |
No. |
Yes, engaging in a sexual act when the perpetrator knows or has reason to know that the victim is unconscious or asleep is a criminal offense. New Mexico Statutes §30-9-10(A); §30-9-11. |
Yes, engaging in a sexual act when the perpetrator knows or has reason to know that the victim is unconscious or otherwise physically helpless is a criminal offense. New Mexico Statutes §30-9-10; §30-9-11. |
Yes, sexual activity between an adult and a minor (age 13-16) is permitted if the couple is married. New Mexico Statutes §30-9-11(G). It is a crime if sexual penetration is perpetrated on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate. New Mexico Statutes §30-9-11(E)(2). It is a crime if sexual penetration is perpetrated on a child 13 to 18 years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least 18 years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school. New Mexico Statutes §30-9-11(G)(2). It is a crime if sexual penetration is perpetrated by a psychotherapist on his patient, with or without the patient's consent, during the course of psychotherapy or within a period of one year following the termination of psychotherapy. New Mexico Statutes §30-9-10(A) (defining "force or coercion" to cover sexual penetration perpetrated by a psychotherapist on a patient); §30-9-11. |
| New York | Under New York law, lack of consent results from:
New York Penal Law §130.05. |
No. |
17 years old. New York Penal Law §130.05. |
No. |
Yes, a physically helpless person, which includes a person who is unconscious, is incapable of giving consent. New York Penal Law §130.00(7); §130.05(3)(d). |
Yes, a mentally incapacitated person, which includes a person who is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, is incapable of giving consent. New York Penal Law §130.00(6); §130.05(3)(c). A person is guilty of facilitating a sex offense with a controlled substance when he or she:
New York Penal Law §130.90. |
Yes.
|
| North Carolina | North Carolina does not specifically define “consent.” The concept of “force” is used in the statute, but this term is also not defined. “Against the will of the other person” is defined as either: (a) without consent of the other person; or (b) after consent is revoked by the other person, in a manner that would cause a reasonable person to believe consent is revoked. North Carolina General Statutes Annotated §14-27.20(1a). A threat of serious bodily harm which reasonably places fear in a person's mind is sufficient to demonstrate the use of force and the lack of consent. State v. Morrison, 94 N.C. App. 517, 522, 380 S.E.2d 608, 611 (1989) Additionally, submission, including submission due to fear, fright, coercion or realization that in the particular situation resistance is futile is not consent. State v. Ricks, 34 N.C. App. 734, 735, 239 S.E.2d 602, 603 (1977); see also State v. Keane, 235 N.C. App. 656, 7 (2014) (“Consent induced by violence or fear of violence is not effective to preclude a rape conviction.”). A child under the age of 12 is presumed incapable of consent. See State v. Summit, 45 N.C. App. 481 (1980). |
No. |
16 years old. North Carolina General Statutes Annotated §14-27.25; §14-27.30. |
No. |
Yes, it is a crime to engage in sexual activity with a physically helpless person, which includes a person who is unconscious, when the person performing the act knows or should have reasonably known the other person was physically helpless. North Carolina General Statutes Annotated §14-27.22; §14-27.27; §14-27.33. |
Yes, it is a crime to engage in sexual activity with a mentally incapacitated person when the person performing the act knows or should have reasonably known the other person was mentally incapacitated. North Carolina General Statutes Annotated §14-27.22; §14-27.27; §14-27.33. It is also a crime when a person who undertakes medical treatment of a patient engages in sexual contact or sexual penetration with the patient while the patient is incapacitated in the course of that medical treatment. In this section, “Incapacitated” is defined as a patient's incapability of appraising the nature of a medical treatment, either because the patient is unconscious or under the influence of an impairing substance, including, but not limited to, alcohol, anesthetics, controlled substances, or any other drug or psychoactive substance capable of impairing a person's physical or mental faculties. North Carolina General Statutes Annotated §14-27.33A. |
Yes, a lawful marriage between a victim and defendant is a defense to certain sexual crimes regarding consent. North Carolina General Statutes Annotated § 14-27.32; 14-27-25; 14-27.30. However, a person may be prosecuted under this Article whether or not the victim is the person's legal spouse at the time of the commission of the alleged rape or sexual offense. § 14-27.34. Consent is not a defense to sexual crimes committed by a defendant who:
|
| North Dakota | North Dakota does not specifically define “consent.” However, “sexual imposition” is a crime defined in NDCC § 12.1-20-04 as: A person who engages in a sexual act or sexual contact with another, or who causes another to engage in a sexual act or sexual contact, is guilty of a class B felony if the actor (1) compels the other person to submit by any threat or coercion that would render a person reasonably incapable of resisting; or (2) engages in a sexual act or sexual contact with another, whether consensual or not, as part of an induction, initiation, ceremony, pledge, hazing, or qualification to become a member or associate of any criminal street gang. The statute defines “coercion” in §12.1-20-02 as:
Additionally, “gross sexual imposition” is a crime defined in § 12.1-20-03 as:
|
No. |
Depending on the crime, either an “adult” or fifteen (15). A person who engages in a sexual act or sexual contact with another, or who causes another to engage in a sexual act, is guilty of gross sexual imposition if the victim is less than fifteen (15) years old. § 12.1-20-03(1)(d). However, a minor between the ages of fifteen to eighteen may consent to activity with another person who is no more than three years older than the minor. § 12.1-20-01(3). See also § 12.1-20-03(1)(d), 05(1), & 07(1)(f). A person commits sexual assault if they knowingly have sexual contact with another person, or cause another person to have sexual contact with that person, if the other person is a minor, fifteen years of age or older, and the actor is an adult. § 12.1-20-07(1)(f). The NDCC does not define “adult,” which is the operative word in its statutory rape provisions. § 12.1-20-01. The North Dakota Supreme Court seems to have defined it as eighteen years old. State v. Klein, 200 N.W. 2d 288, 291 (N.D. 1972) (“proof of force is not necessary where the victim is under the age of eighteen years.”). |
No. |
Yes, a person who engages in a sexual act or sexual contact with another, or who causes another to engage in a sexual act or sexual contact, is guilty of gross sexual imposition if that person knows or has reasonable cause to believe that the victim is unaware that a sexual act or sexual contact is being committed upon him or her. NDCC § 12.1-20-03(1)(c) & (2)(c). |
Yes, if the intoxication is involuntary. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of gross sexual imposition if that person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct by administering or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means with intent to prevent resistance. NDCC § 12.1-20-03(1)(b). A person who knowingly has sexual contact with another, or who causes another person to have sexual contact with that person, is guilty of sexual assault if that person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct by administering or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means for the purpose of preventing resistance. NDCC § 12.1-20-07(1)(c). |
Yes. A person who engages in a sexual act with another person, or any person who causes another to engage in a sexual act is guilty of a felony if the other person is in official custody or detained in a hospital, prison, or other institution and the actor has supervisory or disciplinary authority over the other person. NDCC § 12.1-20-06. A person who knowingly has sexual contact with another, or who causes another person to have sexual contact with that person, is guilty of sexual assault if the other person is in official custody or detained in a hospital, prison, or other institution and the actor has supervisory or disciplinary authority over the other person. NDCC § 12.1-20-07. A person who knowingly has sexual contact with another, or who causes another person to have sexual contact with that person, is guilty of sexual assault if the other person is a minor, fifteen years of age or older, and the actor is the other person’s parent, guardian, or is otherwise responsible for general supervision of the other person’s welfare. NDCC § 12.1-20-07. Any person who is or who holds oneself out to be a therapist and who intentionally has sexual contact, as defined in section 12.1-20-02, with a patient or client during any treatment, consultation, interview, or examination is guilty of a class C felony. Consent by the complainant is not a defense under this section. NDCC § 12.1-20-06.1. “Psychotherapy” means the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction. NDCC § 12.1-20-06.1. “Therapist” means a physician, psychologist, psychiatrist, social worker, nurse, addiction counselor, member of the clergy, or other person, whether licensed or not by the state, who performs or purports to perform psychotherapy. NDCC § 12.1-20-06.1. |
| Ohio | Ohio does not specifically define “consent.” However, submission to sexual conduct as a result of fear may be sufficient in proving lack of consent as physical force or threat of physical force need not be shown to prove rape, merely the overcoming of the victim's will by fear or duress. In re Adams (Ohio Ct.Cl. 1990) 61 Ohio Misc.2d 571, 575, 580 N.E.2d 861, 863. |
No. |
At age 16 a person can consent. No person who is eighteen years or older shall engage in sexual conduct with another person (who is not their spouse) when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard. Ohio Rev. Code Ann. § 2907.04(A). However, there is an exception for married persons between the ages of thirteen and sixteen and for sexual conduct where the offender is less than reckless regarding their knowledge of the minor's age. Id. Ohio imposes strict liability with respect to the victim’s age if:
But see In re D.B., 2011-Ohio-2671, 129 Ohio St. 3d 104, 950 N.E.2d 528 (statutory rape provision, Ohio Rev. Code Ann. § 2907.02(A)(1)(b), as applied to child under the age of 13 who engages in sexual conduct with another child under the age of 13, is unconstitutionally vague). |
Yes, no person shall engage in sexual conduct or sexual contact with another who is not their spouse if the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age. Ohio Rev. Code Ann. § 2907.02(A)(1)(c) (crime of rape applies for sexual conduct); 2907.05(A)(5) (crime of gross sexual imposition for sexual contact ). |
Yes, no person shall engage in sexual conduct or sexual contact with another who is not their spouse if the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age. Ohio Rev. Code Ann. § 2907.02(A)(1)(c) (crime of rape applies for sexual conduct); 2907.05(A)(5) (crime of gross sexual imposition for sexual contact ). Additionally, no person shall engage in sexual conduct with another person who is not that person’s spouse if the offender knows that the other person submits because the other person is unaware that the act is being committed. § 2907.03(A)(3). |
Yes. If the intoxication is involuntary: An offender commits rape if they engage in sexual conduct with another (not their spouse, unless the spouses are separated) if for the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception. § 2907.02(A)(1)(a). An offender commits gross sexual imposition if they engage in sexual contact with another (not their spouse); cause another (not their spouse) to have sexual contact with the offender; or cause two or more other persons to have sexual contact, when for the purpose of preventing resistance, the offender substantially impairs the judgment or control of the other person or of one of the other persons by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception. § 2907.05(A)(2). If the intoxication is voluntary: An offender commits sexual imposition if they engage in sexual contact with another (not their spouse); cause another (not their spouse) to have sexual contact with the offender; or cause two or more other persons to have sexual contact, when the offender:
An offender commits gross sexual imposition if they engage in sexual contact with another (not their spouse); cause another (not their spouse) to have sexual contact with the offender; or cause two or more other persons to have sexual contact, when the offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person's consent for the purpose of any kind of medical or dental examination, treatment, or surgery. § 2907.05(A)(3). Additionally, an offender commits a sexual battery if they engage in sexual conduct with another (not their spouse) when the offender:
§ 2907.03(A)(2)-(3). "[W]hen reviewing substantial impairment due to voluntary intoxication, there can be a fine, fuzzy, and subjective line between intoxication and impairment. Every alcohol consumption does not lead to a substantial impairment. Additionally, the waters become even murkier when reviewing whether the defendant knew, or should have known, that someone was impaired rather than merely intoxicated." State v. Hatten, 2010-Ohio-499, ¶23, 186 Ohio App. 3d 286, 295, 927 N.E.2d 632, 638-39. |
Yes.
|
| Oklahoma | The term “consent” means the affirmative, unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter which can be revoked at any time. Consent cannot be given by an individual who:
Consent cannot be inferred under circumstances in which consent is not clear including, but not limited to:
Okla. Stat. tit. 21, § 113. |
Yes. The term “consent” means the affirmative, unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter which can be revoked at any time. Okla. Stat. tit. 21, § 113. |
16 years old. Okla. Stat. tit. 21, § 1111(A)(1). |
No |
Yes. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator where the victim is at the time unconscious of the nature of the act and this fact is known to the accused. Okla. Stat. tit. 21, § 1111(A)(5). |
Yes. The definition of rape includes an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator where: (1) the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent; (2) the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit; or (3) the victim is at the time unconscious of the nature of the act and this fact is known to the accused. Okla. Stat. tit. 21, § 1111(A)(2), (4), (5). |
Yes. Rape includes an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female within or without the bonds of matrimony and who may be of the same or the opposite sex as the perpetrator:
|
| Oregon | Oregon does not specifically define “consent.” However, a person is considered incapable of consenting to a sexual act if the person is:
A lack of verbal or physical resistance does not, by itself, constitute consent but may be considered by the trier of fact along with all other relevant evidence. A person is incapable of appraising the nature of the person’s conduct if:
Or. Rev. Stat. § 163.315. |
No. |
18 years old. Or. Rev. Stat. § 163.315. Additionally:
|
No. |
Yes. The definition for “physically helpless” includes that the person is unconscious. Or. Rev. Stat. § 163.305(4). “Physically helpless” means the person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Or. Rev. Stat. § 163.305(4). A person is considered incapable of consenting to a sexual act if the person (among other things) is “incapable of appraising the nature of the person’s conduct”, including:
Or. Rev. Stat. § 163.315(3). A person who engages in oral or anal intercourse with another person or causes another to engage in oral or anal intercourse commits the crime of sodomy in the first degree if the victim in incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim's conduct. Or. Rev. Stat. § 163.405. A person commits the crime of sexual abuse in the first degree when that person subjects another person to sexual contact and the victim is incapable by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim's conduct. Or. Rev. Stat. § 163.427. |
Not explicitly. However, the definition for “physically helpless” includes that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Or. Rev. Stat. § 163.305(4). Furthermore, a person is not capable of consent if they cannot appraise the nature of the person’s conduct including:
Or. Rev. Stat. § 163.315(3). A person who engages in oral or anal intercourse with another person or causes another to engage in oral or anal intercourse commits the crime of sodomy in the first degree if the victim in incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim's conduct. Or. Rev. Stat. § 163.405. A person commits the crime of sexual abuse in the first degree when that person subjects another person to sexual contact and the victim is incapable by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim's conduct. Or. Rev. Stat. § 163.427. |
Yes. A person who has sexual intercourse with another person commits the crime of rape in the first degree if the victim is under 16 years of age and is the person’s sibling, of the whole or half blood, the person’s child or the person’s spouse’s child. Or. Rev. Stat. § 163.375(c).
It is sodomy in the first degree to engage in oral or anal sexual intercourse with a victim under the age of 16 and is the person’s sibling, child, or spouse’s child. Or. Rev. Stat. §§ 163.405(1)(c). It is second degree sexual abuse if the offender is 21 years old or older, the victim is under 18 years of age, and at any time before the offense the offender was the victim’s “coach,” meaning they instruct or train an individual or members of a team in a sport or “teacher,” meaning an employee of a school or school district who has direct responsibility for the instruction of students. Or. Rev. Stat. §§ 163.425, 163.426. It is custodial misconduct in the first or second degree for an individual to engage in specified sexual acts with another person when the other person is in the custody of a law enforcement agency following arrest, confined or detained in a correctional facility, participating in an adult in custody or offender work crew or work release, or on probation, parole, post-prison supervision, or other supervised release if that individual is employed by the agency that arrested the person, operates the correctional facility, or supervises the work release. Or. Rev. Stat. §§ 163.452, 163.454. |
| Pennsylvania | Pennsylvania does not specifically define “consent.” However, a person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:
18 Pa.C.S.A. § 3121; § 3123. “Forcible compulsion” is defined as “compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. The term includes, but is not limited to, compulsion resulting in another person’s death, whether the death occurred before, during or after sexual intercourse.” 18 Pa.C.S.A. § 3101. |
No. |
16 years old. 18 Pa.C.S.A. § 3122.1. Mistake of Age Defense – It is no defense that the defendant did not know the age of the child or reasonably believed the child to be the age of 14 years or older whenever criminality of conduct depends on a child being below the age of 14 years. However, when criminality depends on the child's being below a critical age older than 14 years, it is a defense for the defendant to prove by a preponderance of the evidence that he or she reasonably believed the child to be above the critical age. 18 Pa.C.S.A. § 3102. A person commits the offense of rape of a child when the person engages in sexual intercourse with a complainant who is less than 13 years of age. 18 Pa.C.S.A. § 3121(c). A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age. 18 Pa.C.S.A. § 3123(b). It is aggravated indecent assault of a child in the second degree if the complainant is less than 13 years of age or the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other. 18 Pa.C.S.A. § 3125(a)(7), (a)(8), (c)(1). It is aggravated indecent assault of a child in the first degree if the complainant is less than 13 years of age and if: (1) the person does so without the complainant's consent; (2) the person does so by forcible compulsion; (3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring; (5) the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance; or (6) the complainant suffers from a mental disability which renders him or her incapable of consent. 18 Pa.C.S.A. § 3125. It is deviate sexual intercourse in the first degree if the complainant is under 16 and the person is four or more years older than the complainant and the complainant and person are not married to one another. 18 Pa.C.S.A. § 3123(a)(7). |
No. |
Yes. It is rape to have sexual intercourse with a complainant who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring. 18 Pa.C.S.A. § 3121(a)(3). It is indecent assault or aggravated indecent assault for certain activities if the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring or if the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. 18 Pa.C.S.A. §§ 3125(a)(4-5) and 3126(a)(4-5). It is deviate sexual intercourse in the first degree if the complainant is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring or the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. 18 Pa.C.S.A. § 3123(a)(3), (a)(4). |
Yes. It is rape to have sexual intercourse where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. 18 Pa.C.S.A. § 3121(a)(4). It is indecent assault or aggravated indecent assault for certain activities if the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring or if the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. 18 Pa.C.S.A. §§ 3125(a)(4-5) and 3126(a)(4-5). It is deviate sexual intercourse in the first degree if the complainant is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring or the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. 18 Pa.C.S.A. § 3123(a)(3), (a)(4). |
Yes.
|
| Puerto Rico | Puerto Rico does not specifically define “consent.” Any person who performs sexual penetration, whether vaginal, anal, oral-genital, digital or instrumental under any of the following circumstances commits a severe second degree felony:
Puerto Rico Stat. tit. 33 § 4770. |
No. |
16 years old. Puerto Rico Stat. tit. 33 § 4770(a). |
No. |
Yes. Any person who performs sexual penetration, whether vaginal, anal, oral-genital, digital or instrumental commits a severe second degree felony if at the time of the commission of the act the victim is not conscious of its nature and this circumstance is known to the person accused. Puerto Rico Stat. tit. 33 § 4770(e). |
Yes. Any person who performs sexual penetration, whether vaginal, anal, oral-genital, digital or instrumental commits a severe second degree felony if the victim's capability to consent has been annulled or diminished substantially without his/her knowledge or without his/her consent by means of hypnosis, narcotics, depressants or stimulants, or similar means or substances. Puerto Rico Stat. tit. 33 § 4770(d). |
Yes. Any person who performs sexual penetration, whether vaginal, anal, oral-genital, digital or instrumental commits a severe second degree felony if:
|
| Rhode Island | Rhode Island does not specifically define “consent.” “Force or coercion” is defined and means when the accused does any of the following:
|
N/A. |
16 years old. R.I. Gen. Laws § 11-37-6. |
No. |
Yes. A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and if the accused knows or has reason to know that the victim is physically helpless, which includes unconsciousness. R.I. Gen. Laws § 11-37-2(1). A person is guilty of second degree sexual assault if he or she engages in sexual contact with another person and the accused knows or has reason to know that the victim is physically helpless, which includes unconsciousness. R.I. Gen. Laws § 11-37-4(1). |
Yes. A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and if the accused knows or has reason to know that the victim is mentally incapacitated, including due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent. R.I. Gen. Laws § 11-37-1(5); 11-37-2(1). A person is guilty of second degree sexual assault if he or she engages in sexual contact with another person and the accused knows or has reason to know that the victim is mentally incapacitated, including due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent. R.I. Gen. Laws § 11-37-1(5); 11-37-4(1). |
No. |
| South Carolina | South Carolina does not specifically define “consent.” A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:
“Aggravated force” means that the actor uses physical force or physical violence of a high and aggravated nature to overcome the victim or includes the threat of the use of a deadly weapon. S.C. Code Ann. § 16-3-651(c). A person is guilty of criminal sexual conduct in the second degree if the actor uses aggravated coercion to accomplish sexual battery. S.C. Code Ann. § 16-3-653(1).
“Aggravated coercion” means that the actor threatens to use force or violence of a high and aggravated nature to overcome the victim or another person, if the victim reasonably believes that the actor has the present ability to carry out the threat, or threatens to retaliate in the future by the infliction of physical harm, kidnapping or extortion, under circumstances of aggravation, against the victim or any other person. S.C. Code Ann. § 16-3-651(b). A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:
“Mentally defective” means that a person suffers from a mental disease or defect which renders the person temporarily or permanently incapable of appraising the nature of his or her conduct. S.C. Code Ann. § 16-3-651(e). “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct whether this condition is produced by illness, defect, the influence of a substance or from some other cause. S.C. Code Ann. § 16-3-651(f). “Physically helpless” means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act. S.C. Code Ann. § 16-3-651(g). |
No. |
16 years old. S.C. Code Ann. § 16-3-655. |
No. |
Yes. A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness. S.C. Code Ann. § 16-3-654(1)(b). |
Yes. A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and the actor causes the victim, without the victim's consent, to become mentally incapacitated or physically helpless by administering, distributing, dispensing, delivering, or causing to be administered, distributed, dispensed, or delivered a controlled substance, a controlled substance analogue, or any intoxicating substance. S.C. Code Ann. § 16-3-652(1)(c). |
Yes. There are limitations on liability for a person if the victim is the legal spouse of the actor. See S.C. Code Ann. § 16-3-658. Spousal sexual battery is also defined separately for instances where sexual battery accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together. A person can then not be imprisoned more than ten years. See S.C. Code Ann. § 16-3-615(A). Additionally a person is guilty of criminal sexual conduct with a minor in the second degree if the actor engages in sexual battery with a victim who is at least 14 years of age but who is less than 16 years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. S.C. Code Ann. § 16-3-655(B)(2). A person affiliated with a public or private secondary school in an official capacity who engages in sexual battery with a student enrolled in the school who is 16 or 17 years of age, and aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a felony. S.C. Code 1976 § 16-3-755(B). A person affiliated with a public or private secondary school in an official capacity that engages in sexual battery with a student enrolled in the school who is 18 years of age or older, where aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a misdemeanor. S.C. Code 1976 § 16-3-755(C). A person affiliated with a public or private secondary school in an official capacity and with direct supervisory authority over a student enrolled in the school who is 18 years of age or older, and the person affiliated with the public or private secondary school in an official capacity engages in sexual battery with the student, and aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a felony. S.C. Code 1976 § 16-3-755(D).
§ 16-3-755(B-D) do not apply if the person affiliated with a public or private secondary school in an official capacity is lawfully married to the student at the time of the act. S.C. Code 1976 § 16-3-755(E). |
| South Dakota | In 2023, South Dakota defined consent to mean “a person’s positive cooperation in act or attitude pursuant to the person’s exercise of free will.” S. D. Code §22-22-1.5 (1). Prior to 2023, South Dakota did not provide a definition for consent, but it provided that no consent exists for an act of sexual penetration accomplished with any person under the following circumstances:
As of 2023, in addition to the five circumstances above, South Dakota also defines rape as an act of sexual penetration without the victim’s consent and the perpetrator knows or reasonably should have known the victim is not consenting. S.D. Code §22-22-1. No person fifteen years of age or older may knowingly engage in sexual contact with another person other than his or her spouse who, although capable of consenting, has not consented to such contact. S.D. Code §22-22-7.4. |
No, but “positive cooperation” is required. In 2023, South Dakota defined consent to mean “a person’s positive cooperation in act or attitude pursuant to the person’s exercise of free will.” S. D. Code §22-22-1.5 (1). |
16 years old. S.D. Code §§ 22-22-7; 22-22-7.3. |
No. |
Yes, a person can be deemed incapable of consenting to sexual contact because of physical incapacity, which may occur when a person is unconscious. S.D. Code §22-22-7.2. “Physical incapacity,” means “a person's incapability of resisting because the person is unconscious, asleep, or is subject to another physical condition that prevents the person from giving consent or resisting.” S.D. Code §22-22-1.5. |
Yes, a person can be deemed incapable of consenting to sexual contact because of any intoxicating agent. S.D. Code §22-22-1(4). “[T]he State must prove the defendant knew or reasonably should have known that the complainant’s intoxicated condition rendered her incapable of consenting.” State v. Jones, 804 N.W. 2d 409, 414 (2011). In addition, a person can be deemed incapable of consenting to sexual contact because of physical incapacity. S.D. Code §22-22-7.2. “Physical incapacity,” means “a person's incapability of resisting because the person is unconscious, asleep, or is subject to another physical condition that prevents the person from giving consent or resisting.” S.D. Code §22-22-1.5. |
Yes:
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| Tennessee | Tennessee does not provide a definition for consent, but it provides that rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:
Sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:
(4) The sexual contact is accomplished by fraud. For purposes of the crime of sexual battery a victim is incapable of consent if (1) the sexual contact with the victim occurs during the course of a consultation, examination, ongoing treatment, therapy, or other provision of professional services described in (2); and (2) the defendant, whether licensed by the state or not, is a member of the clergy, healthcare professional, or alcohol and drug abuse counselor who was treating the victim for a mental, emotional, or physical condition. Tenn. Code Ann. §39-13-505. |
No, consent is not defined. |
18 years old. Tenn. Code Ann. §39-13-528. |
No. However, it is a sexual offense to knowingly sexually exploit an elderly adult. Tenn. Code Ann. §39-15-512. An “elderly adult” means a person 70 years of age or older. Tenn. Code Ann. §39-15-501(6). “Sexual exploitation” means an act committed upon or in presence of an elderly or vulnerable adult, without that adult's effective consent, that is committed for the purpose of sexual arousal or gratification, or for the purpose of dissemination to others by a person who knew or should have known the act would offend or embarrass a reasonable person. “Sexual exploitation” includes, but is not limited to, sexual contact; exposure of genitals to an elderly or vulnerable adult; exposure of sexual acts to an elderly or vulnerable adult; exposure of an elderly or vulnerable adult's sexual organs; an intentional act or statement by a person intended to shame, degrade, humiliate, or otherwise harm the personal dignity of an elderly or vulnerable adult; or an act or statement by a person who knew or should have known the act or statement would cause shame, degradation, humiliation, or harm to the personal dignity of an elderly or vulnerable adult. “Sexual exploitation” does not include any act intended for a valid medical purpose, or any act reasonably intended to be a normal caregiving act, such as bathing by appropriate persons at appropriate times. Tenn. Code Ann. §39-15-501(13). |
Yes, unconsciousness falls within the definition of “physically helpless.” Tenn. Code Ann. §39-13-501(5). |
Yes, the definition of mentally incapacitated encompasses the situation where a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person's consent, or due to any other act committed upon that person without the person's consent. Tenn. Code Ann. §39-13-501(4). |
Yes.
Note that in Tennessee, the spouse of the defendant can be a “victim” under the rape and sexual battery provisions of the code. Tenn. Code Ann. §39-13-501(8). |
| Texas | Under Texas law, sexual assault “without the consent” of the other person arises when:
Texas Penal Code Ann. §22.011(b). |
No. |
17 years old. Texas Penal Code Ann. §22.011(a) & (c); Texas Penal Code Ann. §21.011. |
No. |
Yes, a sexual assault is considered to occur without the consent of the other person if the other person has not consented and the actor knows the other person is unconscious or if the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring. Texas Penal Code Ann. §§22.011(b)(3) & (5). |
Yes, a sexual assault is considered to occur without the consent of the other person if the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge. Texas Penal Code Ann. §22.011(b)(6). |
Yes, a sexual assault is considered to occur without the consent of the other person where:
Note that it is an affirmative defense to the offense of sexual assault of a child, which is a person under 17 years old, if the actor was the spouse of the child at the time of the offense. Texas Penal Code Ann. §22.011(e)(1). An employee of a public or private primary or secondary school commits the felony offense of an Improper Relationship Between Educator and Student if the employee:
Note that it is an affirmative defense to improper relationship between educator and student if the actor was the spouse of the enrolled person at the time of the offense. Texas Penal Code Ann. §21.12(b). |
| Utah | Under Utah law, sexual offenses “without consent” of the victim arise when:
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No. “[T]he essence of consent is that it is given out of free will, and determining whether someone has truly consented requires close attention to a wide range of contextual elements, including verbal and nonverbal cues.” State v. Reigelsperger, 400 P.3d 1127, 1145 (Utah App. 2017). |
18 years old. Utah Code Ann. §76-5-406. |
No. |
Yes, a sexual offense is considered to occur without consent of the victim if the actor knows the victim is unconscious, unaware that the act is occurring or is physically unable to resist. Utah Code Ann. §76-5-406(2)(e). |
Yes, a sexual offense is considered to occur without consent of the victim if the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge. Utah Code Ann. §76-5-406(2)(h). |
Yes, a sexual offense is considered to occur without consent of the victim:
Utah Code Ann. §§76-5-406(2)(j) and (l). Note that a female under 18 years of age does not by marriage become capable of consenting to illicit sexual intercourse so as to bar prosecution of male participant in such act under carnal knowledge statute. State v. Huntsman, 115 Utah 283 (Utah 1949). |
| Vermont | “Consent” means the affirmative, unambiguous, and voluntary agreement to engage in a sexual act, which can be revoked at any time. 13 Vermont Stat. Ann. §3251(3). “Incapable of consenting” means the person: (A) is incapable of understanding the nature of the conduct at issue; (B) is physically incapable of resisting, declining participation in, or communicating unwillingness to engage in the conduct at issue; or (C) lacks the mental ability to make or communicate a decision about whether to engage in the conduct at issue. 13 Vermont Stat. Ann. §3251(10). In addition, a sleeping or unconscious person cannot consent. Id. §3254(4). Additionally, a person will be deemed to have acted without the consent of the other person where the actor:
13 Vermont Stat. Ann. §3254. |
Yes. |
16 years old. 13 Vermont Stat. Ann. §3252. |
No. |
Yes, a person shall be deemed to have acted without the consent of the victim where the actor knew or reasonably should have known that the other person was unaware that a sexual act or lewd and lascivious conduct was being committed. A sleeping or unconscious person cannot consent. 13 Vermont Stat. Ann. §3254. No person shall engage in a sexual act with another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring. 13 Vermont Stat. Ann. §3252. No person shall engage in a sexual act with another person when the other person is incapable of consenting to the sexual act due to substantial impairment by alcohol, drugs, or other intoxicants and that condition is known or reasonably should be known by the person. 13 Vermont Stat. Ann. §3252. |
Yes, if the actor knew or reasonably should have known that the victim was incapable of consenting to the sexual act or lewd and lascivious conduct with the actor because the person was substantially impaired by alcohol, drugs, or other intoxicants. 13 Vermont Stat. Ann. §3254. No person shall administer any alcohol, drugs, or other intoxicants to another person without the person’s knowledge or against the person’s will and, while the person is impaired by the alcohol, drugs, or intoxicants, engage in a sexual act with that person. 13 Vermont Stat. Ann. §3252. |
However, for married persons, consent can be a defense where a person engages in a sexual act with a child who is under 16 years old and the persons are married to each other and the sexual act is consensual. 13 Vermont Stat. Ann. §3252(c). |
| Virgin Islands | Consent is not specifically defined. However, there is no consent in circumstances when:
|
No. |
18 years old, unless legally married. 14 V.I.C. § 1702. |
No. |
Yes, an actor who engages in sexual contact with a person when the other person is unconscious or physically helpless, or that person’s mental defect or incapacity is known to the actor, is guilty of unlawful sexual contact in the first degree. 14 V.I.C. § 1708. An actor who perpetrates an act of sexual intercourse or sodomy with a person who is, at the time, unconscious of the nature of the act and this is known to the actor is guilty of rape in the first degree. 14 V.I.C. § 1701. |
Yes, a person who engages in sexual contact with a person when the other person's ability to consent to or resist the contact has been substantially impaired by an intoxicating, narcotic or anesthetic agent, is guilty of unlawful sexual contact in the first degree. 14 V.I.C. § 1708. A person who perpetrates an act of sexual intercourse or sodomy with a person when the person’s resistance is prevented by stupor or weakness of mind produced by an intoxicating, narcotic or anesthetic agent, or when the person is known by the defendant to be in such a state of stupor or weakness of mind from any cause is guilty of rape in the first degree. 14 V.I.C. § 1701. |
Yes, there are special rules for persons in positions of authority over the victim and for persons residing in the same household of the victim.
|
| Virginia | Virginia does not provide a definition for consent, but defines rape as sexual intercourse (i) against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, and sexual battery as sexual abuse against the will of the complaining witness, by force, threat, intimidation or ruse. VA Code Ann. §§18.2-61; 18.2-67.4. |
No. |
18 years old. VA Code Ann. §18.2-371. |
No. |
Yes, a person who is unconscious is deemed physically helpless. A person is guilty of rape if the person has sexual intercourse with a complaining witness through the use of the complaining witness’s physical helplessness. VA Code Ann. §§18.2-61; 67.10(4). |
Yes, “mental incapacity,” a statutory term that applies to rape and other sex crimes, is not limited to a permanent condition and may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand the nature or consequences of the sexual act; the cause of the victim's lack of ability to give consent is not dispositive. Molina v. Comm., 636 S.E.2d 470 (2006). It is well established that a transitory circumstance such as intoxication may result in mental incapacity if the nature and degree of the intoxication has gone beyond the state of merely reduced inhibition and has reached a point where the victim does not understand the nature and consequences of the sexual act. Edwin Giovanni Chavez Macias v. Comm. of Virginia, 2021 WL 4532487 (Va. Ct. App. Oct. 5, 2021). |
Yes.
Note the rape statute applies “whether or not” the victim is the spouse of the actor. VA Code Ann. §18.2-61. |
| Washington | Consent requires that there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact at the time of the act. Wash. Rev. Code Ann. § 9A.44.010(2). |
Yes. Wash. Rev. Code Ann. § 9A.44.010(2). A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person where the victim did not consent to sexual intercourse with the perpetrator or where there is a threat of substantial unlawful harm to property rights of the victim. Wash. Rev. Code Ann. § 9A.44.060(1). “Consent” means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact. Wash. Rev. Code Ann. § 9A.44.010(2). |
16 years old, however, there are exceptions for persons in positions of trust, such as school employees and foster parents. Wash. Rev. Code Ann. §§ 9A.44.093; 9A.44.096. |
Yes, an actor is guilty of rape in the second degree if they have sexual intercourse with a person who is a frail elder or vulnerable adult and the perpetrator (i) has a significant relationship with the victim, or (ii) was providing transportation, within the course of his or her employment, to the victim at the time of the offense. Wash. Rev. Code Ann. § 9A.44.050. A “frail elder or vulnerable adult” means a person 60 years old or older who has the functional, mental, or physical inability to care for himself or herself and also includes a person who has been placed under a guardianship under RCW 11.130.265 or a conservatorship under RCW 11.130.360, a person over 18 years old who has a developmental disability under chapter 71A.10 RCW, a person admitted to a long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and a person receiving services from a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW. Wash. Rev. Code Ann. § 9A.44.010(4). |
Yes, a person who is unconscious is physically helpless. An actor is guilty of rape in the second degree if they have sexual intercourse with a person who is incapable of consent by reason of being physically helpless. Wash. Rev. Code Ann. §§ 9A.44.010(12); 9A.44.050. In any prosecution in which lack of consent is based solely upon the victim’s mental incapacity or upon the victim being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Wash. Rev. Code Ann. §§ 9A.44.030. |
Yes, a person that is under the influence of a substance “which prevents a person from understanding the nature or consequences of the act of sexual intercourse” is “mentally incapacitated” and incapable of giving consent. Wash. Rev. Code Ann. § 9A.44.010(7). In any prosecution in which lack of consent is based solely upon the victim’s mental incapacity or upon the victim being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Wash. Rev. Code Ann. §§ 9A.44.030. |
Yes, there are several special relationships between the victim and actor that would impact the victim’s ability to consent and therefore make it a crime to engage in sexual intercourse with a person. Special relationships include:
A person is guilty of custodial sexual misconduct in the first degree when the person has sexual intercourse with another person (a) when (i) the victim is a resident of a correctional facility or is under correctional supervision and (ii) the perpetrator is an employee or contract personnel of a correctional agency and the perpetrator has, or the victim reasonably believes the perpetrator has, the ability to influence the terms, conditions, length, or fact of incarceration or correctional supervision, or (b) when the victim is being detained, under arrest, or in the custody of a law enforcement officer and the perpetrator is a law enforcement officer. Consent of the victim is not a defense to prosecution of this crime. Wash. Rev. Code Ann. § 9A.44.160. |
| West Virginia | Lack of consent results from forcible compulsion, incapacity to consent, or, if the offense charged is sexual abuse, any circumstances in addition to the forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct. W. Va. Code Ann. § 61-8B-2(b). A person cannot consent to sexual intercourse if they are less than 16 years old, mentally defective, mentally incapacitated, physically helpless, or subject to incarceration, confinement or supervision by a state, county, or local government entity, when the actor is a person prohibited from having sexual intercourse, or causing sexual intrusion or sexual contact. W. Va. Code Ann. § 61-8B-2(c). |
No. |
16 years old. W. Va. Code Ann. §§ 61-8B-5, 61-8B-9. |
No. |
Yes, a person who is unconscious is “physically helpless” and cannot give consent. W. Va. Code Ann. §§ 61-8B-2(c), 61-8B-1, 61-8B-4; 61-8B-7. |
Yes. A person who is deemed mentally incapacitated cannot give consent. W. Va. Code Ann. §§ 61-8B-5, 61-8B-8. “Mentally incapacitated” means a person who is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to that person without his or her consent or as a result of any other act committed upon that person without his or her consent. W. Va. Code Ann. §§ 61-8B-1, 61-8B-2(c). |
Yes, a person is deemed incapable of consent when such person is subject to incarceration, confinement or supervision by a state, county, or local government entity, when the actor is a person prohibited from having sexual intercourse, or causing sexual intrusion or sexual contact by a corrections or parole officer. W. Va. Code Ann. §§ 61-8B-2, 61-8B-10. |
| Wisconsin | “Consent” means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. A person is presumed (but the presumption may be rebutted by competent evidence) incapable of consent to sexual contact or sexual intercourse in circumstances where:
|
Yes, consent must be “freely given.” Wis. Stat. Ann. § 940.225(4). |
18 years old. Wis. Stat. Ann. § 948.01(1). Wis. Stat. Ann. § 948.09. |
No, but can impact whether the actor is guilty of First Degree Sexual Assault or Second Degree Sexual Assault. Wis. Stat. Ann. § 940.225(1)(d). A person who commits a violation that would otherwise classify as second degree sexual assault is guilty of first degree sexual assault if the victim is 60 years of age or older. Id. This applies irrespective of whether the defendant had actual knowledge of the victim's age; a mistake regarding the victim's age is not a defense to a prosecution under this paragraph. Id. |
Yes, a person who is unconscious is presumed incapable of consent. Wis. Stat. Ann. § 940.225(4). |
Yes, if the victim is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent. Wis. Stat. Ann. § 940.225(2). |
Yes, there are several special relationships between the victim and actor that would impact the victim’s ability to consent and therefore make it a crime to engage in sexual contact with a person. Special relationships include:
|
| Wyoming | Consent is not defined by statute. However, case law suggests that in order for a person to consent to sexual intercourse, the person must be in a position to exercise independent judgment about the matter. Wilson v. State, 655 P.2d 1246 (Wyo. 1982). |
No. |
17 years old. Wyo. Stat. Ann. § 6-2-316. |
No. |
Yes, a person who is unconscious is deemed to be “physically helpless” and not capable of consenting. Wyo. Stat. Ann. § 6-2-302; Wyo. Stat. Ann. § 6-2-301. |
Yes, if the intoxication makes the victim “physically helpless” or have a mental illness, mental deficiency or developmental disability that makes them incapable of appraising the nature of their conduct. Wyo. Stat. Ann. § 6-2-301; Wyo. Stat. Ann. § 6-2-302. CSC v. State of Wyoming, 118 P.3d 970 (Wyo. 2005). Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the second degree if the actor administers, or knows that someone else administered to the victim, without the prior knowledge or consent of the victim, any substance which substantially impairs the victim’s power to appraise or control his conduct. Wyo. Stat. Ann. § 6-2-303. |
Yes, there are special rules for persons deemed to be in a “position of authority” over the victim that will impact the victim’s ability to consent. “Position of authority” means that position occupied by a parent, guardian, relative, household member, teacher, employer, custodian, health care provider or any other person who, by reason of his position, is able to exercise significant influence over a person. Wyo. Stat. Ann. § 6-2-301. A person commits a sexual assault in the second degree if:
Wyo. Stat. Ann. § 6-2-303. Depending on the age difference between the victim and actor, an actor in a position of authority over a victim may be guilty of sexual abuse of a minor in varying degrees:
|