By Criminal Defense Lawyer Jeremy Rosenthal
Texas law defines sexual assault under Penal Code 22.011 below:
(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 lynchpin of each definition is the lack of consent. So what is the legal definition of consent?
Consent is defined by Texas Penal Code 1.07(11) as… “assent in fact, whether express or apparent.”
The code goes on to further discuss “Effective Consent” meaning consent cannot be attained through force, threat, fraud, or mental defect. Intoxication is a bar to effective consent where the person cannot make reasonable decisions due to the intoxication and the actor is aware of the impairment. See Tex.Pen.C. 1.07(19).
Obviously youth is another bar to “effective consent,” but that is an extensive topic on it’s own so I won’t talk about it much today. You can read more about the law on sexual assault of minors here.
So What Exactly is Consent?
Courts have been clear proof of consent cannot be defined through a set of magic words or with any bright line. The Court’s position on what is or isn’t consent is a bit of a punt. That is, the Courts are happy to say in most instances it is for the jury to decide whether consent did or did not exist or whether consent was ineffective due to some other circumstance. In other words — it is in the “zone” where reasonable minds can differ.
The fact the Courts allow consent to be such a subjective concept essentially on a case by case basis is what makes it so terrifying for both the accused and the accuser. An added layer of terror for the parties in a sexual assault case is many jurors are pre-disposed to automatically identify with one side or the other make a fair trial a real challenge.
Getting a Fair Trial
My primary goal in any case where consent is an issue is to get the best jurors possible for the case. In a perfect world it would be a group of jurors I know will vote with me from the outset — but more realistically — eliminating the jurors who I believe will simply tune us out from the minute we step into the Courtroom.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Nothing in this article should be considered legal advice. For legal advice about any situation you should contact an attorney directly.