Blog

By Jill K. Sanders, Esq.

Consent to sexual activity is being talked about more than ever. The #metoo movement has highlighted how it was often ignored in social and work environments. But what does consent under the law really mean?

Consent Is an Element of the Offense

Some states, such as California, require the initiator of sexual activity to get their partner to express consent by words or actions. This is often referred to as “affirmative consent.” However, New York’s legal scheme does not require this. Rather, lack of consent is often an element of the offense that the prosecution must prove.

Thus in New York, it is usually the responsibility of the complainant to clearly express by words or actions that he/she is not consenting to sexual activity. In other cases, lack of consent is presumed. Sometimes, this is referred to as “statutory rape.” A person is deemed incapable of consent when he/she is:

• Less than 17 years old;
• Mentally disabled or incapacitated;
• Physically helpless (e.g., unconscious, asleep, drugged);
• In police custody, jail, or prison; or
• In some hospital/medical settings

Many offenses in New York’s Penal Law involve “forcible compulsion.” Forcible compulsion means to compel the complainant by either:

• Use of physical force; or
• Threat

The threat must place the complainant in fear of immediate death or physical injury to him/herself or another. Or the threat can indicate the complainant or another will immediately be kidnapped.

Defenses to Sexual Crimes Charges

Consent

If the actor can prove the complainant consented, this may be a defense in many cases. As indicated above, this can be words or actions indicating a willingness to engage in sexual activity. Note that silence or lack of resistance alone does not demonstrate consent. Other behaviors or circumstances can show the complainant did not consent.

Age

In some cases, the difference in age between the actor and complainant can be a defense. For example, if charged with Rape in the Second Degree, the actor can claim he/she is less than four years older than the complainant. Or in a Sexual Abuse in the Third Degree case, the defendant can prove he/she was less than five years older than the complainant if the complainant is more than 14 years old.

Marriage

While this is less frequently used, marriage can be a defense. This is in cases where the complainant’s lack of consent is based on his/her age. It can also be used if the complainant is in a hospital/medical setting, or if he/she is mentally disabled.

Intent

In a small number of cases, the intent of the actor to commit the crime can be disputed. For example, where an actor is intoxicated, he/she may not be able to form the intent to commit a crime. This applies only to offenses requiring specific intent, such as Rape in the First Degree. Specific intent is not required for every sex offense.

A Non-Legal Explanation of Consent

So how would you explaining consent in plain language? Planned Parenthood explains consent with the acronym FRIES.

• Freely given – Consenting is a choice you make without pressure, manipulation, or under the influence of drugs or alcohol.
• Reversible – Anyone can change their mind about what they feel like doing, anytime. Even if you’ve done it before, and even if you’re both naked in bed.
• Informed – You can only consent to something if you have the full story. For example, if someone says they’ll use a condom and then they don’t, there isn’t full consent.
• Enthusiastic – When it comes to sex, you should only do stuff you want to do, not things that you feel you’re expected to do.
• Specific – Saying yes to one thing (like going to the bedroom to make out) doesn’t mean you’ve said yes to others (like having sex).

Finally, one video available on YouTube explains consent in terms of whether someone wants a cup of tea.

Video is copyrighted ©2015 by Emmeline May and Blue Seat Studios.

References:

• Penal Law § 130.05. Available at: https://www.nysenate.gov/legislation/laws/PEN/130.05 (last accessed March 10, 2020).
• NYS Department of Health, Sexual Violence Prevention Program. Available at: https://www.health.ny.gov/prevention/sexual_violence/ (last accessed March 10, 2020).
• Planned Parenthood, Sexual Consent. Available at: https://www.plannedparenthood.org/learn/relationships/sexual-consent (last accessed March 10, 2020).