What Does “Consent” Mean?

Consent is one of the most controversial and highly contested issues under Minnesota’s sex crimes.  Minnesota Statute Section 609.341, subdivision 4 (a) & (b), defines “Consent” as:

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.  A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.

First of all, in layman’s terms, consent must be given without undue pressure, coercion, or use of force.  In addition, the parties must consent to every present sexual act, regardless of prior consensual-sexual acts or relationship history.  In other words, if a person desires to step beyond the current consensual sexual act, then that person must obtain new consent.  Finally, someone who is mentally incapacitated or physically helpless cannot consent, but what do those terms mean exactly?

The above statute defines them as:

“Mentally Incapacitated”

means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

“Physically Helpless”

means that a person is (a) asleep or not conscious; (b) unable to withhold consent or to withdraw consent because of a physical condition; or (c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor.

The most obvious prohibition is that you cannot force another’s consent by slipping them alcohol or drugs.  Most commonly this issue arises when both parties are out drinking at a party or a bar and decide to “hook up” later in the night.  In this instance, the real issue surrounds the level of intoxication of the parties.  Specifically, whether the actor knows, or reasonably should have known, that the other is too intoxicated to formulate consent, or to withhold consent. At the end of the night you may think everything was consensual, but discover otherwise the next morning.

How Can the Government Prove Lack of Consent?

Typically, the Government has to gather evidence to “corroborate,” or support, the victim’s accusations.  But, when it comes to Criminal-Sexual-Conduct accusations no corroboration is required.  Therefore, the victim’s accusation alone, is enough to put you in jail and bring you to court.  All for something that you thought was consensual.  Further, a sex-crime conviction will likely require you to register as a “predatory offender

The Attorneys at Sieben & Cotter Can Help

We have extensive experience with this issue and a proven success record.  There are several approaches that we can take to battle this consent issue, depending on your specific circumstances.  We can guide you through this difficult process and help you avoid mistakes that will prevent a successful outcome.  If you face serious criminal charges, you need an experienced criminal defense attorney.

Call Sieben & Cotter at 651-455-1555 to arrange your free and comprehensive consultation, or send a request for more information.

Minnesota State Bar Association Criminal Law Certified Specialist, Patrick Cotter