What Constitutes Consent in a Sexual Assault Case?

September 29, 2020

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.





What is a Magistrate’s Emergency Protective Order – And How Do I End It?

May 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

Screen Shot 2020-05-26 at 8.40.22 AM

Short Answer:

An Emergency Protective Order (“EPO”) is an ex parte “keep away” order by a magistrate judge normally issued upon an arrest for family violence.  They vary in length and scope.  You are able to modify them but most judges want a “cooling off” period even if both parties want the order to be gone.

Let’s decode some of that legalese — “Ex Parte” means one party or one side is present in court and not the other;

A “Magistrate” is typically not a full-blown judge for the purposes of your case and often have the limited responsibility of setting a bond, signing a warrant, or in these cases — signing emergency protective orders.

In More Depth

An EPO is governed by Article 17.292 of the Texas Code of Criminal Procedure.  The statute is long but fairly concise.  Typically the most daunting condition is the one requiring the accused to stay a certain distance from the accuser and often other immediate family members such as children.  A protective order doesn’t always prohibit communication or contact.  You have to read the fine-print carefully.  If you have any questions it is always best to ask a lawyer.

Violating a Protective Order

It is a criminal offense to violate a protective order.  The Order is legally required to have language explicitly stating this.  Ironically, winning an assault case is often easier than winning an accompanying violation of a protective order charge which might accompany it.

Unintended Hardships and Consequences – For Everyone

While it’s understandable strangers to a couple’s marriage or relationship would want to keep “warring” parties separate for a cooling off period, unintended consequences frequently do more to harm the relationship than good.  Having one person stay in a hotel can be financially draining and often it turns an otherwise efficient household into a single-parent situation with the “victim” bearing excessive challenges and responsibilities without their partner.

Further, not allowing communication also doesn’t allow for easy reconciliation either.

Amending an EPO

An Emergency Protective Order can be amended.  Understandably most magistrates are reluctant to undo or amend a protective order if both parties are not agreed.  The magistrate doesn’t know the parties and only typically knows if things go south and someone is physically hurt after the EPO is modified — they get blamed.  It’s not uncommon for a magistrate to either table or sit on a motion to modify — even if it’s agreed — to allow one or both parties to cool off.

Magistrate Emergency Protective Order FAQs

You can read more about EPOs here.

*Jeremy Rosenthal is Board Certified in Criminal Law and has been designated as a Texas Super Lawyer by Thomson Reuters in 2019.

Five Keys to Defending Assault/ Family Violence Cases

May 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

Police and prosecutors have built a machine to combat domestic violence.  Their intentions are noble yet often misguided and built on false assumptions and one-size fits all narratives.

Family assault cases are one of the most common cases our office handles.  Every one of them is unique but the more and more we focus on them, the better able we are to know the focal points needed for success.

  1.  “No Compromise” attitude.

The fact is in domestic violence cases, the harder you work and the less willing you are to compromise — the luckier you’ll be.  In family assault cases the prosecution’s case tends to deteriorate when pressed.  This doesn’t mean I have to be a jerk to the prosecution — in fact, quite the opposite.  I want to be able to offer them a way out – but on my terms.  If they don’t want out, then we have to be ready to hammer them at trial.  A lawyer’s attitude in these cases is the single most important key to defending these cases.

2.  Legal (And not Emotional) Analysis of the State’s Case.

The law surrounding domestic violence and assault cases is complex and intricate.  There are enough cases analyzing the Sixth Amendment to the US Constitution’s confrontation clause to fill an entire law school course.  There are also multiple defenses to assault which might often apply in any given fact scenario – and your lawyer must also understand in what circumstances the Judge would legally be required to instruct a jury as to those defenses.

Legal analysis is critical because often we know well before the case goes to court the prosecution can’t or is unlikely to win.  This gives us the power and leverage to dictate our terms to the State.

One of the main reasons our system provides for lawyers is so we can effectively divorce our legal problems from our emotional ones.  By that, I mean these cases require a cold-dispassionate analysis.  Just because you might “feel” like you should be at fault doesn’t mean the law says this.

3.  Aggressive Factual Investigation

In spousal abuse allegations your lawyer can’t be afraid of the facts.  As discussed above, the harder we work, typically the luckier we get.  One distinct advantage a criminal defense lawyer has over the prosecution in the vast majority of cases is we typically have a better road map.  We know their side of the story in the police report and they either don’t have our side of the story (because of the 5th Amendment right to remain silent) or they know our story but tune it out because they never think they’re wrong.  In any event, I feel like we always have a more “powerful flashlight” to find the aspects of the case we know will help us win.

Also, it is key to be aggressive particularly from the outset of the case.  Perspectives and accounts tend to change in these cases.  By capturing witness’ recollections early, a lawyer can capitalize on changing stories instead of being victimized by them.

4.  Knowing the Collateral Consequences of a Domestic Violence Charge

One of the reasons I think it is important to have an attitude of “no compromise” is because family assault cases can be so damaging in ways which aren’t obvious.  We call these “collateral consequences.”  Direct consequences would be things such as possible jail sentences (up to a year in Class A Misdemeanor assault cases or up to 10 years prison for cases where impeding breath is alleged), fines, and court costs.  Collateral consequences are issues such as loss of 2nd Amendment rights to possess firearms, your ability to adopt a child in the future, inability to hide your criminal record from the public and on and on.  In truth, even misdemeanor family violence charges can act like “mini-felonies” and there are abundant tripwires.

5.  Persistence

Many of my client’s want me to waive a magic wand and have the problem go away with the snap of my fingers.  It might work like that from time to time but usually not.  One of the keys to a good outcome in a domestic violence charge is knowing we have to be prepared for a “marathon” as compared to a “sprint.”  If we get lucky sooner — so much the better.  But we have to understand the “luck” is normally a function of hard work.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters for 2019.



The Most Common Question I’m Asked as a Criminal Defense Lawyer #2: “Will My Work Find Out?”

March 6, 2020

By Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

I notice when something embarrassing happens in my life, It feels like everyone around me knows and they just aren’t talking about it.  It’s a weird phenomenon.  Surely people will find out eventually if they don’t know at the moment, right?  Then I remind myself the planet doesn’t revolve around me and most people don’t spend all day wondering about my life.

I know my clients go through the same thing.  Every morning the Courthouse is filled with hundreds of people — all of whom assume everyone is looking at them knowing their deepest darkest secret of why they are there.

But people typically only know what we tell them.  And even then they only listen part of the time.

Your workplace is usually no exception.  Unless your workplace is directly wired into to government databases about arrests (and some are), there is usually no way they’d become aware of an arrest absent some obvious indication.  Background checks are expensive and private companies typically don’t order them just to order them.

Here’s the better question — does your employee handbook require you to report an arrest?  Texas is what is called an “at-will” state for employment.  That means you can be hired, fired, promoted or demoted for a good reason, bad reason, or no reason at all.  If you have the duty under your handbook to report an arrest and you don’t then you’ve put your head on the employer’s chopping block.  Then again, they occasion of your arrest may get you canned just the same.  What to do?

Sometimes the answer as to whether to disclose an arrest to an employer just comes down to faith and trust your employer will hear someone out and treat them fairly.  It can absolutely be a case by case basis.

But to answer the original question — employers typically don’t know about the vast majority of arrests.

*Jeremy Rosenthal is an attorney licensed by the State Bar of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is designated as a 2019 Super Lawyer by Thomson Reuters, Inc.  Nothing in this article constitutes legal advice.

5 Most Common Questions I’m Asked: #3 “What Will Show Up on a Background Check After My Arrest?”

March 2, 2020

By Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

What does a criminal history or background check show right after someone is arrested? To know this, we have to understand how a criminal background check works in the first place.

How Does a Criminal Background Check Work?

The Government’s Role

The government keeps your criminal history including arrests and the outcome of those arrests.  They do it through two main databases in Texas.  One is kept by the FBI called the NCIC (National Crime Information Center) and the other is kept by the Texas Department of Public Safety called the TCIC (Texas Crime Information Center).  These databases are not available to the public and access is controlled tightly.

A third source of information is often the county where the criminal case is pending — and some counties are better than others about publishing these materials (and their accuracy).  This information typically is public unlike the TCIC and NCIC.


How Can My Work See My Arrest?

The vast majority of background checks are done through private companies such as LexisNexis, publicdata.com, or GoodHire. Those companies are merely re-publishing lists they purchase from the government from TCIC, NCIC or the county of arrest.

In exchange for purchasing the lists, the companies are highly regulated about what information they can publish and for what reasons.

So here’s whats happening: NCIC and/or TCIC sells your information to a company (Like LexisNexis) and your employer buys the information from them in the form of a criminal background check.


What Will Show Up and How Quickly?

We have to assume in the information age the database is in real-time or close to it.  The database used to be updated periodically.  This was a blessing and a curse.  A blessing because an arrest wouldn’t show up for weeks or months — and a curse because it would take equally as long to erase if you got your case expunged or non-disclosed.

Basic information is typically available such as the date of the arrest and what the arrest was for.  Once there is a final result such as a dismissal or a guilty plea and there is a sentence imposed it may very well be reflected too.

Some Good News

Criminal background checks aren’t cheap and the employer has to certify they are using it for a valid purpose.  They can’t just do one for the sake of doing one.  If you’ve got a stable job then it’s rare your employer will just run a check out of the blue.  If you’re trying to get a new job or a promotion then a background check is going to be more of an issue.

The Solution

Expunctions and non-disclosures are how we erase or hide criminal cases from the public.  You can read about how those work here.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is licensed in Texas to practice law.  Nothing in this article should be considered legal advice.