What Constitutes Consent in a Sexual Assault Case?

By Jeremy Rosenthal, Criminal Defense Lawyer

(972) 369-0577


The question of consent in sexual assault cases is very complex – probably impossibly so.  If you add alcohol or intoxication to the mix the issue gets even tougher if that’s at all possible.  I’ll do my best to make sense of it.

The Law

In Texas, Sexual Assault is defined by Texas Penal Code 22.011 and says in relevant part:

(a) A person commits an offense if :

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent;  or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

The legal definition of “consent” means “assent in fact, whether express or apparent.”  Tex.Pen.C. 1.07(11).  Not too helpful, is it?

Also, today I’m discussing sexual assault – not statutory rape or sexual assault of a child.  That is a different topic.  Persons under the age of consent in Texas (17) cannot lawfully give consent.

Digging Deeper

At a trial, the Judge would instruct the jury to follow the law.  The law I just recited for you.  As you can tell – it is amazingly subjective.  Here’s what is terrifying about the whole conundrum – opinions about what may or may constitute consent vary greatly and typically along gender lines.

In a recent book by Author Malcom Gladwell called, “Talking to Strangers: What We Should Know About the People We Don’t Know” Gladwell attempts to tackle this very issue.  He listed the results of a Washington Post/ Kaiser Family Foundation Poll of 1,000 college students which asked the students whether they thought any of the following behaviors “established consent more more sexual activity.”

A.  Takes off Own Clothes:

  1. Men: 50%
  2. Women: 44%

B.  Gets a Condom:

  1. Men: 43%
  2. Women: 38%

C.  Nods in Agreement:

  1.  Men: 58%
  2. Women: 51%

D.  Engages in foreplay such as kissing or touching:

  1.  Men: 22%
  2. Women: 15%

In each scenario, women consistently believe across the board consent has not been given more frequently than men.

When meeting with clients and their families, I’m often told of specific behaviors of the complaining witness — typically the female — and asked why that doesn’t solve the issue right there?  “But she got into the car with him….”  or “But she pulled his shirt off…” or “But she began rubbing me…”

What this study says is men and women simply see the issue differently… and short of actual verbal consent, there is virtually no “silver bullet” which vindicates someone accused of sexual assault cleanly.

Does This Mean Anyone Who is Accused is Going to Lose?

Certainly not.  A ‘saving grace’ in all this is the standard of proof in a criminal case, that the state must prove their case “beyond a reasonable doubt,” is a fire-wall to a conviction.

Remember, the ‘intent’ aspect of a sexual assault or rape jury charge is based on the accused’s point of view – not the complaining witness’.  That is to say if there is a reasonable doubt the accused thought the complaining witness consented, then they should be acquitted.

So the question about, let’s say, the accuser getting a condom isn’t whether she was, in fact, consenting or not consenting to engaging in penetration — it is whether the accused could have reasonably believed that established consent.  43% of male college students think it does.  In a perfect world, the communication between the two people would be as clear as possible but since it’s not a perfect world – we have to deal with real world scenarios.

In this scenario the defense would likely argue the accused could have reasonably believed the accuser was giving consent because the question is whether the accused intended to knowingly and intentionally act without the accuser’s consent.  Even people who staunchly believe there was no consent given in that circumstance may still likely concede the accused might have misinterpreted this and vote for acquittal.

On the down-side, it goes without saying people who hold firm views on these topics have an understandably difficult time seeing the issue another way.

Misconceptions About the Legal Definition of Consent

I see lots of debate, literature and public information campaigns trying to educate people on what is and isn’t consent.  Examples could be like this video about drinking tea.  It’s very clever and informative and I think all of our hope is it helps to cause people to understand and conform to acceptable behavior – but it’s not necessarily the law.  In the courtroom we deal with statutes, jury charges, and what the legislature has defined as consent.  If it’s not in the Texas Penal Code or some other statute – it’s not the law.

How Does Your Lawyer Defend You in a Sexual Assault Case?

First, your lawyer has to understand most of people’s views about consent in sexual assault cases are driven by emotion, life circumstances, and their pre-existing world views.  Parents of teenage sons may very well imagine their own son in similar circumstances facing lifetime sex offender registration while a potential juror who has themselves been a victim of sexual assault may feel an intrinsic connection with the accuser.

Jury selection is therefore crucial.  It is the lawyer’s ability to eliminate jurors who have pre-existing biases and prejudices that are so strong they can’t sit on the panel.  And any lawyer who has tried enough cases will tell you – they don’t advertise who they are up front.  Your lawyer has to be able to evoke enough emotion to get that juror to reveal their true inner dialogue.

It’s a given beyond jury selection your lawyer needs to work, work, work.  The harder they work, the luckier they will get.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization and has been designated as a Super Lawyer by Thomson Reuters.





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