Because it is typically a full-stop defense, consent is one of the most effective defenses to personal sex crimes, like sexual assault. If a St. Paul criminal defense lawyer establishes consent, there is usually no criminal liability, no matter what happened subsequently.

Frankly, the complex and intricate definition of “consent” in Minnesota Statute 609.341 is a little out of touch with human sexuality. Most people do not sign written waivers in these situations. Furthermore, in the heat of passion, communication sometimes breaks down. That’s especially true if alcohol is involved, and it often is.

So, the consent defense is a little like that old Operation board game. Players used tweezers to extract damaged or diseased organs from a hapless patient. If a player made one wrong move during a procedure, a loud buzzer sounded, and it was game over.

One obvious difference between Operation and a sex crimes defense is that the latter is no game. The stakes are much higher. Additionally, in a sex crimes defense, the rules are not as well-defined. So, your attorney needs a great deal of expertise.

What Consent Means

First off, consent is affirmative and unqualified. “Maybe” is not consent, regardless of the context. Only “yes” is consent. But, the yes does not need to be verbal. Overt actions can also establish consent. These actions should not be reprinted on a family-friendly website, but rest assured, they are very intimate.

Next, consent must be voluntary. This part of the definition is very tricky. Consent is almost never 100 percent voluntary. There is usually at least some cajoling or other pressure. Or, as mentioned, there is a fair amount of alcohol.

Since some pressure is inevitable, consent is usually only involuntary if the defendant lied to obtain the consent or physically forced the other person to consent.

As for alcohol, an abbreviated BAC chart may be useful. As a rough rule of thumb, .08 is legally intoxicated but still fairly functional and .16 is practically falling-down drunk. The next milestones are .24 (passed-out drunk) and .32 (dead or comatose due to alcohol poisoning). So, consent is still possible at less than a .24 and difficult to establish after that. But everyone is different.

Ambien, “roofies,” and other date-rape drugs are in a different category. Many times, alcohol and drugs have less to do with consent and more to do with incapacity, which is outlined below.

Consent is also a present agreement. Prior consent, even if it was an hour ago, is largely irrelevant. Furthermore, a social or other relationship does not constitute consent, at least as a matter of law. That being said, prior consent or a close relationship does make it easier to establish present consent. But again, a St. Paul criminal defense lawyer must tread very lightly when making this argument. One wrong move could alienate the jury, and it’s game over.

Finally, consent is limited. A person can consent to one particular sexual act and then withdraw that consent if things progress past that point.

Who Cannot Consent

Some people cannot consent as a matter of law. This offense is commonly known as “statutory rape.” In Minnesota, the following people are incapable of consenting to any sexual activity:

• Children: People 13 and under can never consent under any circumstances. For people between 13 and 16, there is a Romeo-and-Juliet exception. These individuals may consent to sex if the other party is no more than 48 months (four years) older.
• Mentally Incapacitated: Alcohol-induced incapacity is incredibly vague. Scientifically, impairment begins at one drink. But the Minnesota criminal statute says that the person must be so drunk that the person “lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.” That probably means something much higher. Generally, one dose of a date-rape drug is enough to establish mental incapacity.
• Physically Helpless: People who are asleep, or very nearly asleep, are physically helpless. This point, along with the prior relationship element discussed above, will probably come up frequently in spousal rape cases, if lawmakers do away with the marital rape exception. The House just voted 130-0 to do so.

St. Paul Criminal Defense Lawyers and Procedural Issues

Under the law, the alleged victim’s uncorroborated testimony is sufficient to establish lack of consent. But many times, a Ramsey County jury wants more evidence than just the alleged victim’s unilateral statement. That’s especially true if a St. Paul criminal defense lawyer can successfully cross-examine the alleged victim on this point.

Because of all this complexity and uncertainty, if consent is an issue, personal sex crimes almost always settle out of court. Very often, these agreements include lesser charges, such as less-serious sex crime, or an agreement to classify the defendant at a low risk level. Such a classification makes it easier to get off the sex offender registration list. If a St. Paul criminal defense lawyer can show the prosecutor a psychological profile which supports such an assessment, that’s even better.

Reach Out to Dedicated Attorneys

Consent is an effective and dangerous defense to many sex crimes. For a free consultation with an experienced St. Paul criminal defense lawyer, contact Capitol City Law Group, LLC. Go online now, call us at 651-705-8580, or stop by 287 6th St E, Suite 20, St Paul, MN 55101.