Legal Role of Consent

The legal definitions for terms like rape, sexual assault, and sexual abuse vary from state to state. See how each state legally defines these crimes by visiting RAINN’s State Law Database. No matter what term you use, consent often plays an important role in determining whether an act is legally considered a crime.

The legal role of consent

There is no single legal definition of consent. Each state sets its own definition, either in law or through court cases. In general, there are three main ways that states analyze consent in relation to sexual acts:

• Affirmative consent: Did the person express overt actions or words indicating agreement for sexual acts?
• Freely given consent: Was the consent offered of the person’s own free will, without being induced by fraud, coercion, violence, or threat of violence?
• Capacity to consent: Did the individual have the capacity, or legal ability, to consent?

Capacity to consent

A person’s capacity, or ability, to legally consent to sexual activity can be based on a number of factors, which often vary from state to state. In a criminal investigation, a state may use these factors to determine if a person who engaged in sexual activity had the capacity to consent. If not, the state may be able to charge the perpetrator with a crime. Examples of some factors that may contribute to someone’s capacity to consent include:

• Age: Is the person at or above the age of consent for that state? Does the age difference between the perpetrator and victim affect the age of consent in that state?
• Developmental disability: Does the person have a developmental disability or other form of mental incapacitation, such as a traumatic brain injury?
• Intoxication: Was the person intoxicated? Different states have different definitions of intoxication, and in some states it matters whether you voluntarily or involuntarily became intoxicated.
• Physical disability: Does the persona have a physical disability, incapacity, or other form of helplessness?
• Relationship of victim/perpetrator: Was the alleged perpetrator in a position of authority, such as such as a teacher or correctional office?
• Unconsciousness: Was the person sleeping, sedated, strangulated, or suffering from physical trauma?
• Vulnerable adults: Is the person considered a vulnerable adult, such as an elderly or ill person? Is this adult dependent on others for care?

Remember: each state’s law is different. If you are unsure how a state law applies to specific circumstances, consult an attorney.

Help is available

Regardless of what happened, know that you are not alone. To speak with someone who is trained to help, call the National Sexual Assault Hotline at 800.656.HOPE (4673) or chat online at online.rainn.org. You will receive confidential, judgment-free support from a trained support specialist and information about local services that can assist you with next steps.

It can be challenging to come to terms with what happened. If you are unsure about whether a crime legally occurred, or have further questions about a state’s law and how it applies to a specific event, you can consult an attorney or reach out to local law enforcement for help.