How is consent defined?

Consent has been interpreted to mean “acquiescence or compliance [with the proposition of another].” Ex parte Gordon, 706 So. 2d 1160, 1163 (Ala. 1997).

Lack of consent results from:

1. forcible compulsion; or
2. being incapable of consent. Ala. Code § 13A-6-70(b).

In addition, “Consent to engage in sexual intercourse, sodomy, sexual acts, or sexual contact may be communicated by words or actions. The existence of a current or previous marital, dating, social, or sexual relationship with the defendant is not sufficient to constitute consent. Evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device or sexually transmitted disease protection, without additional evidence of consent, is not sufficient to constitute consent.” Ala. Code § 13A-6-70(d).

“Forcible compulsion” means use or threatened use, whether express or implied, of physical force, violence, confinement, restraint, physical injury, or death to the threatened person or to another person. Factors to be considered in determining an implied threat include, but are not limited to, the respective ages and sizes of the victim and the accused; the respective mental and physical conditions of the victim and the accused; the atmosphere and physical setting in which the incident was alleged to have taken place; the extent to which the accused may have been in a position of authority, domination, or custodial control over the victim; or whether the victim was under duress. Forcible compulsion does not require proof of resistance by the victim. Ala. Code § 13A-6-60(1). 

Existence of forcible compulsion is conclusive presumptive evidence of lack of consent, but lack of consent can also exist without forcible compulsion. Ex parte Gordon, 706 So.2d 1160, 1163 (Ala.1997).

No. Ala. Code § 13A-6-70. 

“Without consent” means that, under the totality of the circumstances surrounding the offense, there was not a freely given, reversible agreement specific to the conduct at issue; in this paragraph, “freely given” means agreement to cooperate in the act was positively expressed by word or action. Alaska Stat. § 11.41.470(10). 

The phrase “without consent” in statute refers to a particular type of unwanted sexual activity: unwanted sexual activity that is coerced by force or the threat of force. Inga v. State, 440 P.3d 345, 349 (Alaska Ct. App. 2019).

Yes. Alaska Stat. § 11.41.470(10).

“Without consent” includes any of the following:

1. the victim is coerced by the immediate use or threatened use of force against a person or property;
2. the victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant (see definition of “mental defect” below);
3. the victim is intentionally deceived as to the nature of the act; or
4. the victim is intentionally deceived to erroneously believe that the person is the victim’s spouse. 

Arizona Revised Statute § 13-1401(A)(7).

No.

There is a lack of consent if a person engages in a sexual act with another person by forcible compulsion or with a person who is incapable of consent because he or she is physically helpless, mentally defective or mentally incapacitated, or because of a victim’s age. Arkansas Code §§ 5-14-103; 5-14-125.

• “Forcible compulsion” means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Arkansas Code § 5-14-101(3).
• “Mentally defective” means that a person suffers from a mental disease or defect that renders the person:
• incapable of understanding the nature and consequences of a sexual act; or
• unaware a sexual act is occurring.
• Note: a determination that a person is mentally defective shall not be based solely on the person’s IQ. Arkansas Code § 5-14-101(5).
• “Mentally incapacitated” means that a person is temporarily incapable of appreciating or controlling the person’s conduct as a result of the influence of a controlled or intoxicating substance:
• administered to the person without the person’s consent; or
• that renders the person unaware a sexual act is occurring. Arkansas Code § 5-14-101(6).
• “Physically helpless” means that a person is:
• unconscious;
• physically unable to communicate a lack of consent; or
• rendered unaware that a sexual act is occurring. Arkansas Code § 5-14-101(8).
• A nursing home patient was unable to communicate lack of consent and, thus, was “physically helpless” within meaning of statute for attempted rape purposes; victim was blind, unable to speak, and confined to bed or wheelchair, and victim could only grunt, raise her hand, and shake her head from side to side to communicate. Dabney v. State, 1996, 930 S.W.2d 360, 326 Ark. 382. 
• Note: When criminality of conduct depends on a victim's being incapable of consent because he or she is mentally defective or mentally incapacitated, it is an affirmative defense that the actor reasonably believed that the victim was capable of consent. Arkansas Code § 5-14-102(e).

The existence of forcible compulsion in a rape case does not depend on the quantum of force that is applied but rather on whether the act is consummated against the victim’s will. Hillman v. State, 569 S.W.3d 372 (Arkansas 2019).

No.

“Consent” is defined to mean positive cooperation in act or attitude pursuant to the exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. California Penal Code § 261.6.

Yes. California Penal Code § 261.6.

“Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship is not sufficient to constitute consent. Submission under the influence of fear does not constitute consent. Colorado Revised Statutes Annotated § 18-3-401(1.5).

No.

Lack of consent to sexual activity exists where:

1. the accused compels the victim to engage in sexual activity by the use or threat of force against the victim (or against a third person);
2. the victim is mentally incapacitated or impaired because of mental disability or disease to the extent that the person is unable to consent to sexual activity; or
3. the victim is physically helpless. Connecticut General Statutes Annotated §§ 53a-65; 53a-70; 53a-71; 53a-72a; 53a-73a.

“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling such person’s conduct owing to the influence of a drug or intoxicating substance administered to such person without such person’s consent, or owing to any other act committed upon such person without such person’s consent. Connecticut General Statutes Annotated § 53a-65(5).

“Impaired because of mental disability or disease” means that a person suffers from a mental disability or disease which renders such person incapable of appraising the nature of such person’s conduct. Connecticut General Statutes Annotated § 53a-65(4).

“Physically helpless” means that a person is unconscious or for any other reason is physically unable to resist an act of sexual intercourse or sexual contact or to communicate unwillingness to an act of sexual intercourse or sexual contact. Connecticut General Statutes Annotated § 53a-65(6).

No.

“Without consent” means any of the following:

• The defendant compelled the victim to submit by an act of coercion or by force, by gesture, or by threat of death, physical injury, pain or kidnapping to be inflicted upon the victim or a third party, or by any other means which would compel a reasonable person under the circumstances to submit. The victim need resist only to the extent that it is reasonably necessary to make the victim’s refusal to consent known to the defendant, unless such resistance would be futile or foolhardy.
• The defendant knew the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed.
• The defendant knew the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting.
• Where the defendant is a health professional, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested.
• The defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance.

Note: “health professional” includes all individuals who are licensed or who hold themselves out to be licensed or who otherwise provide professional physical or mental health services, diagnosis, treatment or counseling and shall include, but not be limited to, doctors of medicine and osteopathy, dentists, nurses, physical therapists, chiropractors, psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors, marriage and family counselors or therapists and hypnotherapists.

Note: “cognitive disability” means a developmental disability that substantially impairs an individual's cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. “Cognitive disability” also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation.

11 Delaware Code § 761.

No.

“Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. “Consent” shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender. Florida Statutes § 794.011(1)(a).

Yes – the statute requires that consent be “voluntary”. Florida Statutes § 794.011(1)(a).

The State of Georgia does not define consent in reference to sexual activity.

The offense of rape occurs when it is against “a female forcibly and against her will” or “a female who is less than ten years of age”.  Georgia Code § 16-6-1.

The phrase “against her will” means without consent. Wightman v. State, 289 Ga.App. 225, 656 S.E.2d 563 (2008).

No.

Consent is not defined by statute. However, Hawaii law provides that a person commits a sex crime if:

• the person knowingly subjects another person to a sexual act by compulsion; or
• the person knowingly subjects to a sexual act another person who is mentally defective, mentally incapacitated, or physically helpless. HRS §§ 707-730; 707-731; 707-732.

“Compulsion” means absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss. HRS § 707-700.

“Mentally defective” means a person suffering from a disease, disorder, or defect which renders the person incapable of appraising the nature of the person’s conduct. HRS § 707-700.

“Mentally incapacitated” means a person rendered temporarily incapable of appraising or controlling the person’s conduct as a result of the influence of a substance administered to the person without the person’s consent. HRS § 707-700.

“Physically helpless” means a person who is unconscious or for any other reason physically unable to communicate unwillingness to an act. HRS § 707-700.

See also:

“Consent signifies voluntary agreement or concurrence . . . [c]onsent may be express or implied.” State v. Adams, 10 Haw. App. 593, 605, 880 P.2d 226, 234 (1994).

Evidence that victim rebuffed offender’s sexual advances by repeatedly telling offender to stop, attempting to pull way, and telling offender that she did not want to be touched was sufficient to establish absence of consent. State v. Jackson, 81 Haw. 39, 46, 912 P.2d 71, 78 (1996).

Not in statute, though please see State v. Adams above for more information.

Consent is not specifically defined.

However, Idaho law references consent in its definition of certain circumstances that constitute “rape”. Rape is defined as “the penetration, however slight, of the oral, anal or vaginal opening with a penis” accomplished under any one of the following circumstances:

• the victim is under the age of sixteen and the perpetrator is eighteen years of age or older, and the victim is not lawfully married to the perpetrator;
• the victim is sixteen or seventeen years of age and the perpetrator is three years or more older than the victim, and the victim is not lawfully married to the perpetrator;
• the victim is incapable, through any unsoundness of mind, due to any cause, including, but not limited to, mental illness, mental disability or developmental disability, whether temporary or permanent, of giving legal consent;
• the victim resists but the resistance is overcome by force or violence;
• the victim is prevented from resistance by the infliction, attempted infliction, or threatened infliction of bodily harm, accompanied by apparent power of execution, or is unable to resist due to any intoxicating, narcotic, or anesthetic substance;
• the victim is prevented from resistance due to an objectively reasonable belief that resistance would be futile or that resistance would result in force or violence beyond that necessary to accomplish the prohibited contact; 
• the victim is at the time unconscious of the nature of the act (“unconscious of the nature of the act” means incapable of resisting because the victim was unconscious or asleep, or was not aware, knowing, perceiving, or cognizant that the act occurred);
• the victim submits under the belief that the person committing the act is the victim’s spouse or someone other than the accused, and the belief is induced by artifice, pretense or concealment practiced by the accused with intent to induce such belief;
• the victim submits under the belief, instilled by the actor, that if the victim does not submit, the actor will cause physical harm to some person in the future, cause damage to property, engage in other conduct constituting a crime, accuse any person of a crime or cause criminal charges to be instituted against the victim, or expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule.

Idaho Statutes § 18-6101.

No.

“Consent” means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent. 720 ILCS 5/11-0.1.

A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct. 720 ILCS 5/11-1.70.

“The focus is on what the defendant knew or reasonably should have known regarding the victim’s willingness or ability to give knowing consent.” People v. Roldan, 2015 IL App (1st) 131962, ¶ 19.

“Unable to give knowing consent” includes when the accused administers any intoxicating or anesthetic substance, or any controlled substance causing the victim to become unconscious of the nature of the act and this condition was known, or reasonably should have been known by the accused. “Unable to give knowing consent” also includes when the victim has taken an intoxicating substance or any controlled substance causing the victim to become unconscious of the nature of the act, and this condition was known or reasonably should have been known by the accused, but the accused did not provide or administer the intoxicating substance. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:

1. was unconscious or asleep;
2. was not aware, knowing, perceiving, or cognizant that the act occurred;
3. was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact; or
4. was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. 720 ILCS 5/11-0.1.

A victim is presumed “unable to give knowing consent” when the victim:

1. is committed to the care and custody or supervision of the Illinois Department of Corrections (IDOC) and the accused is an employee or volunteer who is not married to the victim who knows or reasonably should know that the victim is committed to the care and custody or supervision of such department;
2. is committed to or placed with the Department of Children and Family Services (DCFS) and in residential care, and the accused employee is not married to the victim, and knows or reasonably should know that the victim is committed to or placed with DCFS and in residential care;
3. is a client or patient and the accused is a health care provider or mental health care provider and the sexual conduct or sexual penetration occurs during a treatment session, consultation, interview, or examination;
4. is a resident or inpatient of a residential facility and the accused is an employee of the facility who is not married to such resident or inpatient who provides direct care services, case management services, medical or other clinical services, habilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility; or
5. is detained or otherwise in the custody of a police officer, peace officer, or other law enforcement official who: (i) is detaining or maintaining custody of such person; or (ii) knows, or reasonably should know, that at the time of the offense, such person was detained or in custody and the police officer, peace officer, or other law enforcement official is not married to such detainee. 720 ILCS 5/11-0.1.

Yes, it requires “freely given agreement” to the act of sexual penetration or sexual conduct in question. 720 ILCS 5/11-0.1.

Consent is not specifically defined under the current law. However, Indiana law provides that a person commits a sex crime if: (1) the victim is compelled by force or imminent threat of force; (2) the victim is unaware that the sexual intercourse or other sexual conduct is occurring; (3) the victim is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct cannot be given; or (4) the person disregarded the victim’s attempts to physically, verbally, or by other visible conduct refuse the person’s acts. IC §§ 35-42-4-1; 35-42-4-8.

Capacity to consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. Stafford v. State, 455 N.E.2d 402, 406 (Ind. Ct. App. 1983).

Consent of a woman from fear of personal violence is void. Parrett v. State, 200 Ind. 7, 159 N.E. 755, 760 (1928).

No.

Consent is not specifically defined. However, Iowa law defines “sexual abuse” as any sex act between persons where:

• the sexual act is done by force or against the will of the other (if the consent or acquiescence of the victim is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other); or
• the victim is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know the right and wrong of conduct in sexual matters; or
• the other person is a child.

I.C.A. § 709.1.

The “against the will” element is deliberately broad and consciously designed to capture all circumstances when there is an actual failure of consent, including use of psychological force. See State v. Kelso-Christy, 911 N.W.2d 663, 667 (Iowa 2018).

It is not necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other. I.C.A. § 709.5.

No.

Consent is not specifically defined. However, Kansas law provides that a person commits rape when a person knowingly engages in sexual intercourse with a victim who does not consent under any of the following circumstances:

• (1) the victim is overcome by force or fear;
• (2) the victim is unconscious or physically powerless;
• (3) the victim is incapable of giving consent because of mental deficiency or disease, or because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender;
• (4) the victim is under the age of 14;
• (5) the victim’s consent was obtained through a knowing misrepresentation that the sexual intercourse was a medically or therapeutically necessary procedure; or
• (6) the victim’s consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender’s authority. K.S.A. 21-5503.

See also:

The test for consent under that provision is whether the individual understands the nature and consequences of the proposed act. State v. Ice, 27 Kan. App. 2d 1, 4, 997 P.2d 737, 740 (2000).

The Kansas rape statute does not require proof that the defendant intended to have nonconsensual intercourse. The statute requires proof that the defendant had sexual intercourse without the victim’s consent when the victim was overcome by force or fear. State v. Plunkett, 261 Kan. 1024, 1030–31, 934 P.2d 113, 118 (1997).

If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent. State v. Ice, 27 Kan. App. 2d 1, 5, 997 P.2d 737, 740 (2000).

A person may be convicted of rape if intercourse begins consensually but consent is withdrawn after penetration, that withdrawal is communicated to the defendant, and the intercourse continues by force or fear. State v. Flynn, 299 Kan. 1052, 1053, 329 P.3d 429, 430 (2014).

The “force” required to sustain a rape conviction in this state does not require that a rape victim resist to the point of becoming the victim of other crimes such as battery or aggravated assault. The Kansas rape statute does not require the State to prove that a rape victim told the offender she did not consent, physically resisted the offender, and then endured sexual intercourse against her will. It does not require that a victim be physically overcome by force in the form of a beating or physical restraint. It requires only a finding that she did not give her consent and that the victim was overcome by force or fear to facilitate the sexual intercourse. State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261, 1271 (Kan. 1994).

No.

“Lack of consent” results from:

• (1) forcible compulsion;
• (2) incapacity to consent; or
• (3) if the offense charged is sexual abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor’s conduct. KRS § 510.020.

A person is also “deemed incapable of consent” when he or she is

• (1) less than 16 years old;
• (2) 16 or 17 years old and the actor is at least 10 years older than the victim at the time of the sexual act;
• (3) an individual unable to communicate consent or lack of consent, or unable to understand the nature of the act or its consequences, due to an intellectual disability or a mental illness;
• (4) mentally incapacitated;
• (5) physically helpless; or
• (6) under the care or custody of state or local agency pursuant to court order and the actor is employed or working on behalf of the state or local agency, except where the persons are lawfully married to each other and there is no court order in effect prohibiting contact between the parties. KRS § 510.020.

“Mental illness” means a diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) and any subsequent revision thereto, of the American Psychiatric Association. KRS § 510.010.

“Individual with an intellectual disability” means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. KRS § 510.010.

“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of an intoxicating substance administered to him or her without his or her consent or as a result of any other act committed upon him without his or her consent. KRS § 510.010.

“Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act as well as a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug. KRS § 510.010.

Actual physical force is not needed to prove forcible compulsion and in determining whether a victim submitted because of an implied threat which placed him or her in fear, a subjective rather than an objective standard must be applied.  Yarnell v. Com. 833 S.W.2d 834, 836 (KY. 1992). 

No.

Consent is not defined. However, Louisiana law provides that a person commits a sex crime:

• (1) when the victim resists the act to the utmost, but whose resistance is overcome by force;
• (2) when the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution;
• (3) when the victim is prevented from resisting the act because the offender is armed with a dangerous weapon;
• (4) when the victim is under the age of 13;
• (5) when two or more offenders participated in the act;
• (6) when the victim is prevented from resisting the act because the victim is a person with a disability;
• (7) when the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape;
• (8) when the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim;
• (9) when the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity;
• (10) when the victim, through unsoundness of mind, is temporarily or permanently incapable of understanding the nature of the act and the offender knew or should have known of the victim’s incapacity;
• (11) when the victim submits under the belief that the person committing the act is someone known to the victim, other than the offender, and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender. LSA-R.S. 14:42, LSA-R.S. 14:42.1, LSA-R.S. 14:43, LSA-R.S. 14:43.1.

Further, a person is deemed incapable of consent when the person is under arrest or otherwise in the actual custody of a police officer or other law enforcement official and the offender is a police officer or other law enforcement official who either: (1) arrested the person or was responsible for maintaining the person in actual custody; (2) knows or reasonably should know that the person is under arrest or otherwise in actual custody. LSA-R.S. 14:41.1.

No.

“Consent” means a word or action by a person that indicates a freely given agreement. 17-A MRSA § 251.

Yes. “Consent” means a word or action by a person that indicates a freely given agreement. 17-A MRSA § 251.

The term “consent” means words or overt actions indicating a freely given arrangement to have sexual intercourse or sexual contact and is further defined, but not limited by the following:

• An expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn;
• A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent; and
• Lack of consent may be inferred based on all of the surrounding circumstances and must be considered in determining whether a person gave consent.

The victim is incapable of consent because the victim is:

• mentally disordered or incapacitated;    
• physically helpless;    
• overcome by deception, coercion, or surprise;    
• less than 16 years old;    
• incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation, conditional release, or parole and the perpetrator is an employee, contractor or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;
• this does not apply if the individuals are married to each other, and one of the individuals involved is on probation or parole and the other individual is a probation or parole officer of a supervising authority.
• receiving services from a youth care facility, and the perpetrator:
• has supervisory or disciplinary authority over the victim or is providing treatment to the victim; andemployee, contractor, or volunteer of the youth care facility; or
• is an employee, contractor, or volunteer of the youth care facility; or
• (This does not apply if the individuals are married to each other and one of the individuals involved is a patient in or resident of a facility, is a recipient of community-based services, or is receiving services from a youth care facility and the other individual is an employee, contractor, or volunteer of the facility or community based service.)

• admitted to a mental health facility, a community-based facility or a residential facility, or is receiving community-based services and the perpetrator:
• has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and
• is an employee, contractor or volunteer of the facility or community-based service.
• (This does not apply if the individuals are married to each other and one of the individuals involved is a patient in or resident of a facility, is a recipient of community-based services, or is receiving services from a youth care facility and the other individual is an employee, contractor, or volunteer of the facility or community based service.)
• a program participant in a private alternative adolescent resident or outdoor program and the perpetrator is a worker affiliated with the program:
• (This does not apply if the individuals are married to each other and one of the individuals involved is a program participant and the other individual is a worker affiliated with the program.)
• a client receiving psychotherapy services and the perpetrator:
  • Is providing or purporting to provide psychotherapy services to the victim; or
  • Is an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the victim and the perpetrator has supervisory or disciplinary authority over the victim;
  • (This does not apply if the individuals are married to each other and one of the individuals involved is a psychotherapy client and the other individual is a psychotherapist or an employee, contractor, or volunteer of a facility that provides or purports to provide psychotherapy services to the client.)
• a student of an elementary, middle, junior high or high school, whether public or nonpublic, and the perpetrator is not a student of an elementary, middle, junior high or high school and is an employee, contractor, or volunteer of any school who has ever had instructional, supervisory, disciplinary, or other authority over the student in a school setting:
  • (This does not apply if the individuals are married to each other.)
• a witness in a criminal investigation or a person who is under investigation in a criminal matter and the perpetrator is a law enforcement officer who is involved with the case in which the victim is a witness or is being investigated;
  • (This does not apply if the individuals are married to each other.)  
• a parent or guardian involved in a child abuse or neglect proceeding and the perpetrator is:
• Employed by the department of public health and human services for the purposes of carrying out the department’s duties and
• Directly involved in the parent or guardian’s case or involved in the supervision of the case.

Mont. Code Ann. § 45-5-501(1).

Yes, consent is defined to mean words or overt actions indicating a '"freely given agreement" to have sexual intercourse or contact.  Mont. Code Ann. § 45-5-501(1)(a).  In addition, resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent. Mont. Code Ann. § 45-5-511(5).

Consent itself is not defined, however “without consent” means:

• (a)(i) The victim was compelled to submit due to the use of force or threat of force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the victim expressed a lack of consent through conduct, or (iv) the consent, if any was actually given, was the result of the actor's deception as to the identity of the actor or the nature or purpose of the act on the part of the actor;
• (b) The victim need only resist, either verbally or physically, so as to make the victim's refusal to consent genuine and real and so as to reasonably make known to the actor the victim's refusal to consent; and
• (c) A victim need not resist verbally or physically where it would be useless or futile to do so.

Neb. Rev. Stat. §28-318(8).

No. Neb. Rev. Stat. §28-318.

Consent is not defined by statute. However, it is an element of the crime of sexual assault that the crime was committed against the will of the victim. Nev. Rev. Stat. Ann. § 200.366.

No.

Ohio does not specifically define “consent.” However, submission to sexual conduct as a result of fear may be sufficient in proving lack of consent as physical force or threat of physical force need not be shown to prove rape, merely the overcoming of the victim's will by fear or duress.  In re Adams (Ohio Ct.Cl. 1990) 61 Ohio Misc.2d 571, 575, 580 N.E.2d 861, 863.

No.

The term “consent” means the affirmative, unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter which can be revoked at any time.

Consent cannot be given by an individual who:

• is asleep or is mentally or physically incapacitated either through the effect of drugs or alcohol or for any other reason, or
• is under duress, threat, coercion or force.

Consent cannot be inferred under circumstances in which consent is not clear including, but not limited to:

• the absence of an individual saying “no” or “stop”, or
• the existence of a prior or current relationship or sexual activity.

Okla. Stat. tit. 21, § 113.

Yes. The term “consent” means the affirmative, unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter which can be revoked at any time. Okla. Stat. tit. 21, § 113.

Oregon does not specifically define “consent.” However, a person is considered incapable of consenting to a sexual act if the person is:

• (a) under 18 years of age;
• (b)incapable of appraising the nature of the person’s conduct;
• (c) mentally incapacitated; or
• (d) physically helpless. 

A lack of verbal or physical resistance does not, by itself, constitute consent but may be considered by the trier of fact along with all other relevant evidence.

A person is incapable of appraising the nature of the person’s conduct if:

• (a) the person is unable to understand the nature of the conduct;
• (b) the person is unable to understand the right to choose whether and how to engage in conduct, including the right to revoke a prior decision to engage in conduct; or
• (c) the person is unable to communicate a decision to engage in conduct.

Or. Rev. Stat. § 163.315.

No.

“Consent” means the clear and voluntary agreement by an individual to engage in vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.1. Prior to October 2024, consent was not specifically defined.

In addition:

(1) the existence of consent, lack of consent, or withdrawal of consent shall be determined based on a totality of the circumstances, including the words and conduct of the victim and the defendant;

(2) consent may be withdrawn before or during vaginal intercourse, a sexual act, or sexual contact;

(3) the lack of consent may be communicated through words or conduct;

(4) a current or previous dating, social, or sexual relationship by itself does not constitute consent;

(5) submission as a result of fear, threat, or coercion does not constitute consent if the individual alleged to have performed the act in violation of this subtitle knows or reasonably should know that the victim would submit as a result of fear, threat, or coercion; and

(6) the manner of dress of an individual does not constitute consent.

MD Code, Criminal Law, § 3-301.1.

Maryland law provides that a person commits a sex crime if that person engages in “vaginal intercourse” or “sexual act” with another:

(1) by force, or the threat of force, without the consent of the other;

(2) if the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual;

(3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim; or

(4) if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old. MD Code, Criminal Law, § 3-303; § 3-304*; § 3-307.

*§ 3-304 was amended in October 2024 so that a sex crime (rape in the second decree) occurs whether or not there is force or threat of force if it is done without the consent of the other.

Evidence of physical resistance by the victim is not required. MD Code, Criminal Law, § 3-319.1

“Mentally incapacitated individual” means an individual who, because of the influence of a drug, narcotic, or intoxicating substance, or because of an act committed on the individual without the individual’s consent or awareness, is rendered substantially incapable of:

(1) appraising the nature of the individual’s conduct; or

(2) resisting vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

“Physically helpless individual” means an individual who:

(1) is unconscious; or

(2)

(i) does not consent to vaginal intercourse, a sexual act, or sexual contact; and

(ii) is physically unable to resist, or communicate unwillingness to submit to, vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

“Substantially cognitively impaired individual” means an individual who suffers from an intellectual disability or a mental disorder, either of which temporarily or permanently renders the individual substantially incapable of:

(1) appraising the nature of the individual’s conduct;

(2) resisting vaginal intercourse, a sexual act, or sexual contact; or

(3) communicating unwillingness to submit to vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

Maryland law also provides that a person may not engage in sexual contact with another:

(1) if the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual; or

(2) if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim; or

(3) if the victim is 14 or 15 years old, and the person performing the sexual act is at least 21 years old. MD Code, Criminal Law, § 3-307.

See also:

In the case of a conscious and competent victim, mere passivity on the victim’s part will not establish the absence of consent. The law looks for express negation or implicit negation as evidenced by some degree of physical resistance or an explanation of why the will to resist was overcome by force or fear of harm. Travis v. State, 218 Md. App. 410, 428, 98 A.3d 281, 291 (2014).

It is well settled that the terms “against the will” and “without the consent” are synonymous in the law of rape. State v. Rusk, 289 Md. 230, 241, 424 A.2d 720, 725 (1981).

Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse. On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape. Battle v. State, 287 Md. 675, 684, 414 A.2d 1266, 1270 (1980).

No. “Consent” means the clear and voluntary agreement by an individual to engage in vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.1.

Consent is not specifically defined. The standard in the sexual assault statutes is whether the accused compels the victim to submit by force and against his or her will, or compels such person to submit by threat of bodily injury. Mass. Gen. Laws. Ann. Ch. 265 §22.

Not specified.

Consent is not specifically defined. The standard used in the sexual assault statutes is whether the accused used “force or coercion to accomplish the sexual [act].” Mich. Comp. Laws. Ann. § 750.520b – e.

Not specified.

"Consent" means 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. Further:

• A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.
• Corroboration of the victim’s testimony is not required to show lack of consent.

Minn. Stat. § 609.341(4).

Yes, the definition requires words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.

Not defined.

Not specified.

Consent is not specifically defined.

However, Missouri law provides that rape in the first degree is committed if the offender has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim’s knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse. Mo. Rev. Stat. § 566.030.

No.

Pennsylvania does not specifically define “consent.”  However, a person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:

• By forcible compulsion;
• By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
• Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring;
• Where the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance; or
• Who suffers from a mental disability which renders the complainant incapable of consent. 
• Who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.

18 Pa.C.S.A. § 3121; § 3123.

“Forcible compulsion” is defined as “compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. The term includes, but is not limited to, compulsion resulting in another person’s death, whether the death occurred before, during or after sexual intercourse.”  18 Pa.C.S.A. § 3101.

No.

Tennessee does not provide a definition for consent, but it provides that rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:

• (1) Force or coercion is used to accomplish the act;
• (2) The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent;
• (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated, physically helpless or a vulnerable adult (defined as "a person eighteen (18) years of age or older who, because of intellectual disability or physical dysfunction, is unable to fully manage the person's own resources, carry out all or a portion of the activities of daily living, or fully protect against neglect, exploitation, or hazardous or abusive situations without assistance from others") with an intellectual disability; or
• (4) The sexual penetration is accomplished by fraud. Tenn. Code Ann. §39-13-503. 

Sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:

• (1) Force or coercion is used to accomplish the act;
• (2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;
• (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or

(4) The sexual contact is accomplished by fraud.

For purposes of the crime of sexual battery a victim is incapable of consent if (1) the sexual contact with the victim occurs during the course of a consultation, examination, ongoing treatment, therapy, or other provision of professional services described in (2); and (2) the defendant, whether licensed by the state or not, is a member of the clergy, healthcare professional, or alcohol and drug abuse counselor who was treating the victim for a mental, emotional, or physical condition. Tenn. Code Ann. §39-13-505.

No, consent is not defined.

Under Texas law, sexual assault “without the consent” of the other person arises when:

• (1) the actor compels the other person to submit or participate by the use of physical force, violence, or coercion;
• (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat;
• (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
• (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
• (5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
• (6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
• (7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
• (8) the actor is a public servant who coerces the other person to submit or participate;
• (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
• (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser;
• (11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code; or
• (12) the actor is a health care services provider who, in the course of performing an assisted reproduction procedure on the other person, uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor;
• (13) purposes of the crime of sexual battery a victim is incapable of consent if (1) the sexual contact with the victim occurs during the course of a consultation, examination, ongoing treatment, therapy, or other provision of professional services described in (2); and (2) the defendant, whether licensed by the state or not, is a member of the clergy, healthcare professional, or alcohol and drug abuse counselor who was treating the victim for a mental, emotional, or physical condition. Tenn. Code Ann. §39-13-505
• (14) the actor is a caregiver hired to assist the other person with activities of daily life and causes the other person to submit or participate by exploiting the other person’s dependency on the actor.

Texas Penal Code Ann. §22.011(b).

No.

Under Utah law, sexual offenses “without consent” of the victim arise when:

• (a) the victim expresses lack of consent through words or conduct;
• (b) the actor overcomes the victim through the actual application of physical force or violence;
• (c) the actor is able to overcome the victim through concealment or by the element of surprise;
• (d)
• (i) the actor coerces the victim to submit by threatening to retaliate in the immediate future against the victim or any other person, and the victim perceives at the time that the actor has the ability to execute this threat; or
• (ii) the actor coerces the victim to submit by threatening to retaliate in the future against the victim or any other person, and the victim believes at the time that the actor has the ability to execute this threat;
• (“to retaliate” includes threats of physical force, kidnapping, or extortion)
• (e) the actor knows the victim is unconscious, unaware that the act is occurring, or is physically unable to resist;
• (f) the actor knows or reasonably should know that the victim has a mental disease or defect, which renders the victim unable to appraise the nature of the act, resist the act, understand the possible consequences to the victim’s health or safety, or appraise the nature of the relationship between the actor and the victim;
• (g) the actor knows that the victim participates because the victim erroneously believes that the actor is someone else;
• (h) the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge;
• (i) the victim is younger than 14 years of age;
• (j) the victim is younger than 18 years of age and at the time of the offense the actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim;
• (k) the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate, under circumstances not amounting to the force or threat required under Subsection (b) or (d) above; or
• (l) the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested.
• Consent to any sexual act or prior consensual activity between or with any party does not necessarily constitute consent to any other sexual act. Consent may be initially given but may be withdrawn through words or conduct at any time prior to or during sexual activity. Utah Code Ann. §76-5-406(2)-(3).

No. “[T]he essence of consent is that it is given out of free will, and determining whether someone has truly consented requires close attention to a wide range of contextual elements, including verbal and nonverbal cues.” State v. Reigelsperger, 400 P.3d 1127, 1145 (Utah App. 2017). 

“Consent” means the affirmative, unambiguous, and voluntary agreement to engage in a sexual act, which can be revoked at any time. 13 Vermont Stat. Ann. §3251(3).

“Incapable of consenting” means the person: (A) is incapable of understanding the nature of the conduct at issue; (B) is physically incapable of resisting, declining participation in, or communicating unwillingness to engage in the conduct at issue; or (C) lacks the mental ability to make or communicate a decision about whether to engage in the conduct at issue. 13 Vermont Stat. Ann. §3251(10).  In addition, a sleeping or unconscious person cannot consent.  Id. §3254(4).

Additionally, a person will be deemed to have acted without the consent of the other person where the actor:

• (A) knew or reasonably should have known that the other person was incapable of consenting to the sexual act or lewd and lascivious conduct;
• (B) knew or reasonably should have known that the other person was unaware that a sexual act or lewd and lascivious conduct was being committed; or
• (C) knew or reasonably should have known that the other person was incapable of consenting to the sexual act or lewd and lascivious conduct with the actor because the person was substantially impaired by alcohol, drugs, or other intoxicants. 

Lack of consent may be shown without proof of resistance.

Submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent.

13 Vermont Stat. Ann. §3254.

Yes.

Virginia does not provide a definition for consent, but defines rape as sexual intercourse (i) against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, and sexual battery as sexual abuse against the will of the complaining witness, by force, threat, intimidation or ruse. VA Code Ann. §§18.2-61; 18.2-67.4.

No.

Consent requires that there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact at the time of the act. Wash. Rev. Code Ann. § 9A.44.010(2).

Yes. Wash. Rev. Code Ann. § 9A.44.010(2). A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person where the victim did not consent to sexual intercourse with the perpetrator or where there is a threat of substantial unlawful harm to property rights of the victim.  Wash. Rev. Code Ann. § 9A.44.060(1).  “Consent” means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact. Wash. Rev. Code Ann. § 9A.44.010(2).

“Consent” means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact.

A person is presumed (but the presumption may be rebutted by competent evidence) incapable of consent to sexual contact or sexual intercourse in circumstances where:

• (a) the person suffers from a mental illness or defect which impairs capacity to appraise personal conduct; or
• (b) the person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Wis. Stat. Ann. § 940.225(4).

Yes, consent must be “freely given.” Wis. Stat. Ann. § 940.225(4).

Consent is not defined by statute. However, case law suggests that in order for a person to consent to sexual intercourse, the person must be in a position to exercise independent judgment about the matter. Wilson v. State, 655 P.2d 1246 (Wyo. 1982).

No.