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Raising Consent as a Defense in Sexual Assault Cases

Sexual assault is a serious crime and a conviction can result in a lengthy prison sentence, heavy fines and other penalties. Also, a criminal record can easily result in the loss of employment and reputation and also can foreclose future business and personal opportunities. Therefore, any allegation of sexual assault should be taken with the utmost seriousness.

Under Texas law, sexual assault is defined as intentionally or knowingly committing certain acts of penetration of or contact with another person without their consent. However, the concept of legal consent is complicated and fact-specific, which makes raising consent as a defense difficult.

For one thing, some people cannot give consent as a matter of law due to their age. In Texas, the age of legal consent is generally 17 but can be 18 depending on the circumstances. If the victim is a teenager not younger than 14, consent can be asserted as an affirmative defense if there is no more than a three-year age difference between the victim and the alleged assailant.

There are numerous other situations in which consent will be found lacking as a matter of law. They include the following:

  • The offender compels the victim to submit or to participate by using physical force, violence or coercion or threatening violence to the victim or some other person.
  • The offender has intentionally impaired the victim’s power to control his or her conduct by administering a drug or other substance without the victim’s knowledge.
  • The offender is a mental health services provider, health care services provider, caregiver, clergyman, coach or tutor who exploits the victim’s emotional dependency on them.

There are some misconceptions about legal consent. Many people believe that consent is not a factor when it comes to married couples. However, the law applies to spouses the same as it does to any other two people. Also, consent is event-specific. Even if a person gives consent to sexual contact on a previous occasion, this does not mean that consent is implied in the future.

All of this makes clear that proving consent as a defense to a sexual assault charge is complicated and demanding of a high level of objective evidence. The circumstances of the alleged offense bear heavily on the question of consent, as do the nature and severity of the conduct itself. Anyone who is accused of sexual assault should immediately seek the advice and counsel of an experienced criminal defense attorney to protect their rights.

Kevin L. Collins, P.C. is a full-service criminal defense law firm in San Antonio, Texas. The attorney and support staff are highly experienced in defending both state and federal sex crimes. Our team handles such matters diligently, efficiently and in a manner that minimizes unwanted publicity. If you have been accused of a sex-related crime, feel free to contact us online or call 210-598-8629 for an initial consultation.

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We are here to help and support you through these generally challenging times with your specific legal issues. You will be able to reach me or my staff through our main telephone numbers, and of course by email: [email protected]. Phone conferences for existing and potential clients are available, as is the video conference feature through the Zoom app. Zoom may present some privacy challenges so phone conferences are preferred. Please take care of your health by following the measures recommended by the CDC, and by state and local authorities.
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