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The rules of consent and legal definitions of rape, sexual assault, and sexual harassment have been under the microscope since 2018. The #MeToo campaign thrust sexual violence into the public spotlight, bringing renewed debate on what constitutes inappropriate behavior. However, the law is unambiguous in its definitions and laws on sexual consent. Individual states have different definitions of consent, either enshrined in state law or through the application in previous court cases. However, there are several overarching trends.
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The 3 Legal Rules of Consent
Irrespective of state, there are three main ways that the U.S. law defines sexual consent. The first is affirmative consent. This is where the person gave overt actions or words that expressed their consent. Freely given sexual consent means that the person made the decision to give their consent without coercion, fear, or the threat of violence. Finally, the capacity to consent means that the person was able to make the decision to give their consent.
All three of these criteria have to be present for the sexual act to have been consensual. If even one was not, such as the capacity to consent, it could mean the sexual activity was illegal.
What Constitutes Capacity to Consent?
Most rules of consent cases are not clear cut. It’s not always obvious when a person is incapacitated, for example, and unable to make a decision regarding sexual consent. There are several circumstances, however, when someone is always unable to give their consent.
Firstly, if the victim is under the legal age of consent. There are no circumstances under which someone under the minimum age of consent can give their consent. In many American states, this age of consent is 16. However, it varies from state to state.
Furthermore, if a person has a mental disability that prevents them from making an informed decision on consent, they will likely be unable to provide their legal consent.
Also, if they are drunk or on drugs and are intoxicated, they may be unable to provide consent. This does not necessarily mean they are unconscious. A person’s ability to make rational decisions on consent may be impaired while they are conscious. Hopefully this discussion is helping to make rules of consent easier to understand.
More about Legal Consent to Sexual Activity
Situations, where one party holds a position of authority over the other, can also diminish the victim’s ability to offer legal consent. For example, if one person is a correctional officer or has significant influence over the other, they may feel coerced or under pressure to provide their consent.
Finally, vulnerable adults are also sometimes unable to offer their consent. This includes elderly and ill people, as well as those dependent on others.
Related read: Find out about consent as it applies to a criminal defence
Final Words on Rules of Consent
Above are general rules that determine sexual consent and its legal circumstances. However, the application of these laws often varies from state to state. For more information, and a better understanding of how consent rules apply in your state, contact a lawyer with experience in sexual consent. They can provide legal assistance, counsel, and judgment-free support in any legal proceedings.
Do you find the law confusing where you live? Do you think more education on sexual consent is necessary for your local area or on a global scale?