Consent is a common defense to many different types of sex crimes and offenses including rape, sexual assault, and sexual abuse. “Consent” is also a legal term of art. The precise definition may vary from state to state and from one offense to the other.

Our criminal defense lawyers understand when defendants can argue consent as a defense and what evidence is needed to show someone consented to sexual interactions. We also understand that the best way to avoid these types of charges is to seek consent in the first place, and avoid scenarios where your word or intentions – “intent” being another term of art in the legal sphere – could be doubted or denied. If you are a parent of a child who is attending school, talking to that child about what consent means can help protect him or her, too.

Common guidelines for understanding consent

Some of the issues involved with consent to rape and other sexual offenses, according to the Rape Abuse Incest National Network (RAINN) are the following:

• Affirmative consent. Affirmative consent generally requires overt words or actions indicating that the person agreed to the sexual acts.
• Freely given consent. Consent given due to force, violence, coercion, or any threat of violence is not freely given and does not qualify as legal consent.
• Capacity to give consent. For any affirmative consent to be valid, the victim must have the legal capacity/ability to consent. Some of the factors that affect the capacity to give consent include:
  • In some states, anyone who is drunk cannot give consent – whether they agree to sexual contact voluntarily or involuntarily. In Tennessee, intoxication (voluntary or otherwise) is not a defense, but it can be admissible as evidence.
  • Adults generally are considered to have the legal capacity to consent unless other conditions apply.
  • A developmental disability. Someone who has a traumatic brain injury, a cognitive impairment such as dementia, a mental incapacitation, or a developmental disability may not be able to give consent to a sexual act.
  • A physical disability. A person who is physically disabled or physically helpless may not have the legal capacity to consent to sexual acts
• The relationship between the perpetrator and the victim. Generally, the ability of someone to consent will be challenged if the perpetrator is in a position of authority over the alleged victim.
• The ability to give legal consent will be contested if the alleged victim was sedated, sleeping, suffering from a concussion, or some other physical trauma.
• Vulnerable adults. The ability of a senior or someone who is ill to give their consent to sexual acts will be challenged – especially if the defendant was responsible for the care of the senior – such as a staff member of a nursing home.

Tennessee sex offense crimes – and the role of consent

Tennessee law does not specifically define consent for purposes of Tennessee sex crimes. What it does have is multiple definitions of terms that imply consent was not or could not be given, in any given situation. There are some related definitions for some of the capacity terms discussed above, all of which imply that consent was not or could not be given freely:

• Under the law, “threat of kidnapping, extortion, force or violence to be performed immediately or in the future or the use of parental, custodial, or official authority over a child less than fifteen (15) years of age” are acts of coercion.
• Mentally defective. This term means that “a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of the person’s conduct.”
• Mentally incapacitated. This term means that “a person is rendered temporarily incapable of appraising or controlling the person’s conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person’s consent, or due to any other act committed upon that person without the person’s consent.”
• Physically helpless. This term means that “a person is unconscious, asleep or for any other reason physically or verbally unable to communicate unwillingness to do an act.”

Tennessee defines rape as:

1. 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 or physically helpless
   4. The sexual penetration is accomplished by fraud.

[Emphasis added]

What happens if both parties are underage?

In Tennessee, the age of consent is 18. That means only adults 18 and older can consent to sexual activity. Individuals 17 and under cannot consent to sexual activity. When both parties are legally considered minors, the type of charge may change.

For example, if a 17-year-old has sex with a 13-year-old, that is statutory rape. Even if the younger child gave “consent,” the assumption under law is that neither child is legally able to give consent. Tennessee also has charges for mitigated statutory rape and aggravated statutory rape, which are based on the ages of the parties involved.

Why you want an experienced attorney on your side if you are facing rape charges

Affirmative consent can be a difficult concept. It sounds nice in theory that both participants in sexual activity should consent to the activity. There are a few considerations though. Much sexual activity is spontaneous. There are times when the sex starts out as consensual – and then one person objects. Understand that all over the country, once a person says “no” or decides he or she no longer wants to engage in sexual activity, the other party could conceivably be charged with rape of he or she does not abide by that wish.

The ability of the person who does not want sexual activities to take place can become harder to determine if the person is intoxicated. It could, and arguably should, make a difference if the person becomes drunk unknowingly such as when a drink is spiked with alcohol. Alcohol affects different people differently based on their weight and other factors. Unlike drunk driving cases, neither person involved in the sexual content normally takes a breath test to determine their level of intoxication.

Each case is unique. Our Sevierville criminal defense lawyers work to show there was affirmative consent when that is a viable argument in a case involving sexual offenses.

At Delius & McKenzie, PLLC, our criminal defense lawyers have the experience, resources, and persuasive abilities to fight for anyone charged in Tennessee with a sex crime. We understand the different defenses that can help you obtain your freedom such as showing the persons you had sexual contact with consented to the sexual consent. We fight to obtain dismissals, acquittals, and negotiated plea reductions to lesser charges.

To assert all your defenses to a sex offense in Tennessee, call us or fill out our contact form to schedule a free consultation. We’ve been fighting for the accused for more than 20 years. We represent criminal defendants in Sevierville, Seymour, Gatlinburg, Pigeon Forge, and the surrounding Tennessee regions.