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A common everyday term, the word ‘consent’ is used in many fields including law, medicine, and scientific research. In this article, however, the word consent will only be used in a legal context, as it pertains to sexual encounters and allegations of criminal activity. Most people have misunderstandings about what consent means. Let’s first understand the basic meaning of consent when it comes to the law.
In simple terms, consent is a voluntary agreement between all the parties involved in a sexual act. This voluntary agreement is done with clear words and actions. Consent is necessary in order to proceed with any acts of sexual intimacy.
If a person involved in the act has not given consent, then it becomes non-consensual sex — i.e., rape or sexual assault. It is necessary to say that any type of sexual activity — touching, groping, kissing, intercourse — is a form of sexual assault if done without consent. Also, it is important to keep in mind that asking a person to engage in a sexual activity repeatedly until they give in is not the same as having consent. Instead, it is coercion and is not consensual.
How Does Sexual Consent Work?
The terms for sexual consent are straightforward. Here is how it works:
- Consent is about communication and awareness. That means that each person involved is of the legal age by the law to give consent. This age varies by state, and in North Carolina, it is 16.
- Giving consent one time for sexual activity does not mean that consent exists for all future interactions. For example, just because you have had sex once with your partner, that does not mean that your partner would be willing to do it again. You still need to ask for their consent.
- You can also always withdraw consent at any stage of sexual activity. If a person feels uncomfortable and wants to stop, they can withdraw consent at anytime.
- Checking in with your partner from time to time and asking if they are still okay with the act is the best way to ensure that consent has been given.
In addition, physiological responses such as an orgasm, erection, or arousal are signs of your body reacting to the sexual act even when you are not consenting to sex. Perpetrators may use these physiological responses as a way to shame the survivors of sexual violence, but they do not connote consent without the voluntary and enthusiastic ‘yes’.
Who Can Give Consent?
In the USA, the legal age for consensual sexual activities is 18 (and 16 years old in North Carolina). However, there are some exceptions to this. These include:
- A person with a developmental disability or mental incapacity is not fully able to understand the act.
- A person under the influence of alcohol or drugs may be unable to give their consent. This is not to say that every person drinking alcohol should not have sexual intercourse, but they should be coherent enough to give consent. There have also been studies that show that sexual violence is more likely to happen when the victim is under the influence of alcohol.
- A person in a relationship with an unequal balance of power, such as a teacher and student, coach and team member, or employer and employee.
- The consent is achieved through the use of fear or threat.
- A person who is sedated and is unaware of their surroundings can not consent.
Why Does Consent Matter?
Without consent, the act of sex results in sexual violence, assault, or rape. Adults who get involved in sexual activity without another person’s consent face jail time and can be forced to register as sex offenders.
Always remember, consent is never implied by things like how you dress, speak, or your behavior. It is done through communication, and there should not be any questions or mysteries around it. Lastly, it is also important to say that the absence of the word “no” does not imply that the person has given consent. Consent needs to be overt, voluntary, and enthusiastic.
Have You Been Accused of Sexual Assault?
Sexual assault is a serious violation of a person’s bodily autonomy, and such charges carry serious penalties. If you have been accused of non-consensual sexual activity, it is important to speak to a knowledgeable criminal defense attorney right away. We here at Arnold & Smith, PLLC, understand the law surrounding sex crimes, and we can help you fight these very serious charges. Please contact us today to get a phone, video or in-person consultation by calling at (704) 370-2828 to speak with our detail-oriented and well-versed lawyers with offices in Charlotte, Lake Norman, and Monroe, please contact Arnold & Smith, PLLC today or find additional resources here.
The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.
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