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Consent Laws

Last Updated: 2016-02-05
State How is Consent Defined? Does the definition require "freely given consent" or "affirmative consent"? At what age is a person able to consent? Does developmental disability and/or mental incapacity impact the victim���s ability consent? Does consciousness impact the victim���s ability consent? Does intoxication impact the victim���s ability to consent? Does the relationship between the victim and actor impact the victim���s ability to consent?
Alabama^

Consent has been interpreted to mean “acquiescence or compliance with the proposition of another.” Ex parte Gordon, 706 So. 2d 1160, 1162 (Ala. 1997).

Lack of consent results from:

  1. forcible compulsion;
  2. incapacity to consent; or
  3. if the offense charged is sexual abuse, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct. Ala. Code § 13A-6-70(b).

Forcible compulsion” means physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person. Ala. Code § 13A-6-60(8)

No. Ala. Code § 13A-6-70

16 years old. Ala. Code § 13A-6-70(c).

No. Ala. Code § 13A-6-70.

Yes, a person that is unconscious is deemed physically helpless and lacks the ability to consent. Ala. Code § 13A-6-60(7).

Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Ala. Code § 13A-6-60(7).

It can, depending on the circumstances. The victim is deemed mentally incapacitated, and unable to consent to sexual activity, where an intoxicating substance that is administered to the victim without his or her consent causes the victim to be temporarily incapable of appraising or controlling his or her conduct. Ala. Code § 13A-6-60(6).

Please see "Is voluntary intoxication a defense to sex crimes?" below for more information regarding intoxication.

Yes, in certain cases:

  • In cases involving the sexual assault of a child by an adult, forcible compulsion may be found where the child knows and trusts the adult and the adult exercises authority and domination over the child sufficient to allow inference of an implied threat if the child did not comply. R.E.N. v. State, 944 So. 2d 981, 984 (Ala. Crim. App. 2006) (citing Powe v. State, 597 So.2d 721 (Ala.1991), as limited by Ex parte J.A.P., 853 So.2d 280 (Ala.2002)).
  • It is illegal for a school employee to engage in “a sex act or deviant sexual intercourse with a student under the age of 19 years” or to have “sexual contact” with such a student. Consent is not a defense for these acts. Ala. Code §§ 13A-6-81; 13A-6-82.

Consent is not an element of the crime of incest for engaging in sexual intercourse with a family member (meaning the crime of incest occurs whether or not the parties consented to the act). Ala. Code § 13A-13-3.

Alaska^

Without consent” means that a person:

  1. with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone; or
  2. is incapacitated as a result of an act of the defendant. Alaska Stat. § 11.41.470.

No. Alaska Stat. § 11.41.470.

  • An adult and a minor:
  • Two minors:
    • The following constitutes sexual abuse of a minor in the first degree:
      • A person 16 years of age or older engaging in sexual penetration with a person who is under 13 years of age. Alaska Stat. § 11.41.434.
    • The following constitutes sexual abuse of a minor in the second degree:
      • A person 16 years of age or older engaging in sexual contact with a person under 13 years of age. Alaska Stat. § 11.41.436.
      • A person 16 years of age or older aids, induces, causes, or encourages a person who is under 16 years of age to engage in conduct amounting to the unlawful exploitation of a minor, including lewd touching, masturbation, bestiality or lewd exhibition as described in Alaska Stat. 11.41.455a(2)-(6). Alaska Stat. § 11.41.436.

No.

Yes, “without consent” means that a person is incapacitated as a result of an act of the defendant. And “incapacitated” means temporarily incapable of appraising the nature of one’s own conduct or physically unable to express unwillingness to act. Alaska Stat. § 11.41.470. An individual that is unconscious would be both incapable of appraising the nature of one’s own conduct or physically unable to express unwillingness to act.

In addition, lack of consent is not an element for many crimes where an individual would be unaware that a sexual act is being committed (meaning the offender is responsible regardless of whether the victim consented):

  • The following constitutes sexual assault in the first degree:
    • A person engaging in sexual penetration with a person who the offender knows is unaware that a sexual act is being committed and the offender is a health care worker and the offense takes place during the course of professional treatment of the victim. Alaska Stat. § 11.41.410.
  • The following constitutes sexual assault in the second degree.
    • A person engaging in sexual penetration with a person who the offender knows is unaware that a sexual act is being committed. Alaska Stat. § 11.41.420.
    • A person engaging in sexual contact with a person who the offender knows is unaware that a sexual act is being committed and the offender is a health care worker and the offense takes place during the course of professional treatment of the victim. Alaska Stat. § 11.41.420.
  • The following constitutes sexual assault in the third degree.
    • A person engaging in sexual contact with a person who the offender knows is unaware that a sexual act is being committed. Alaska Stat. § 11.41.425.

The Alaska Statute does not directly address intoxication, but intoxication that causes an individual to be “unaware that a sexual act is being committed” may invalidate consent.

Yes, there are several relationships between offender and victim for which consent is unavailable as a defense, including:

  • The following constitutes sexual assault in the first degree:
    • A person engaging in sexual penetration with another person who the offender knows is mentally incapable and who is in the offender’s care by authority of law or in a facility or program that is required by law to be licensed by the state. Alaska Stat. § 11.41.410.
    • A person engaging in sexual penetration with a person who the offender knows is unaware that a sexual act is being committed and the offender is a health care worker and the offense takes place during the course of professional treatment of the victim. Alaska Stat. § 11.41.410.
  • The following constitutes sexual assault in the second degree:
    • A person engaging in sexual contact with another person who the offender knows is mentally incapable and who is in the offender’s care by authority of law or in a facility or program that is required by law to be licensed by the state. Alaska Stat. § 11.41.420.
    • A person engaging in sexual contact with a person who the offender knows is unaware that a sexual act is being committed and the offender is a health care worker and the offense takes place during the course of professional treatment of the victim. Alaska Stat. § 11.41.420.
  • The following constitutes sexual assault in the third degree:
    • A person, while employed in a state correctional facility or other placement designated by the commissioner of corrections for the custody and care of prisoners, engaging in sexual penetration with a person who the offender knows is committed to the custody of the Department of Corrections to serve a term of imprisonment or period of temporary commitment. Alaska Stat. § 11.41.425.
    • A person engaging in sexual penetration with a person 18 or 19 years of age who the offender knows is committed to the custody of the Department of Health and Social Services and the offender is the legal guardian of the person. Alaska Stat. § 11.41.425.
Arizona^

Without consent” means any of the following:

  1. the victim is coerced by the immediate use or threatened use of force against a person or property;
  2. the victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant;
  3. the victim is intentionally deceived as to the nature of the act; or
  4. the victim is intentionally deceived to erroneously believe that the person is the victim’s spouse. Arizona Revised Statute § 13-1401.

No.

  18 years old. Arizona Revised Statute § 13-1405.

No.

Yes, a victim can be incapable of consent by reason of sleep or any other similar impairment of cognition as long as such condition is known or should have reasonably been known to the defendant. Arizona Revised Statute § 13-1401

Yes, a victim can be incapable of consent by reason of drugs, alcohol or any other similar impairment of cognition as long as such condition is known or should have reasonably been known to the defendant. Arizona Revised Statute § 13-1401.

Yes, for certain crimes. Consent is a defense to a prosecution for sexual abuse under section 13-1404 or sexual conduct with a minor under section 13-1405 that the person was the spouse of the other person at the time of the commission of the act. Consent is not a defense for sexual assault under 13-1406. Arizona Revised Statute § 13-1407.

Arkansas^

There is a lack of consent if a person engages in a sexual act with another person by forcible compulsion or with a person who is incapable of consent because he or she is physically helpless, mentally defective or mentally incapacitated. Arkansas Code §§ 5-14-103; 5-14-125.

  • Mentally defective” means that a person suffers from a mental disease or defect that renders the person:
    • incapable of understanding the nature and consequences of a sexual act; or
    • unaware a sexual act is occurring.
  • Mentally incapacitated” means that a person is temporarily incapable of appreciating or controlling the person’s conduct as a result of the influence of a controlled or intoxicating substance.
  • Physically helpless” means that a person is:
    • unconscious;
    • physically unable to communicate a lack of consent; or
    • rendered unaware that a sexual act is occurring.    

No.

15 years old. Arkansas Code § 5-14-110(a)(1).

No.

Yes, a person that is unconscious is deemed “physically helpless” and unable to give consent. Arkansas Code § 5-14-101.

Yes, a person that is temporarily incapable of appreciating or controlling the person’s conduct as a result of the influence of a controlled or intoxicating substance:

  • administered to the person without the person’s consent, or
  • that renders the person unaware a sexual act is occurring

is deemed “mentally incapacitated” and unable to give consent. Arkansas Code § 5-14-101.

Yes, in a prosecution for certain non-forcible rape and sexual assault in the first through third degree, certain relationships between the victim and actor may impact whether the victim is able to consent, including where the actor is:

Criminal liability is not imposed where the actor commits any degree of sexual assault on his or her spouse. Arkansas Code §§ 5-14-124; 5-14-125; 5-14-126; 5-14-127.

California^

“Consent” is defined to mean positive cooperation in act or attitude pursuant to the exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. California Penal Code § 261.6.

Yes. California Penal Code § 261.6.

18 years old. California Penal Code § 261.5.

No.

Yes, the accused is guilty of rape if engaging in an act of sexual intercourse where the other person is at the time unconscious of the nature of the act and it is known to the accused. California Penal Code § 261.

Yes, the accused is guilty of rape if engaging in an act of sexual intercourse where the other person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. California Penal Code § 261.

Yes, a minor is capable of consenting to sexual intercourse with an adult who is the minor’s spouse. California Penal Code § 261.5.

Colorado^

“Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. Colorado Revised Statutes Annotated § 18-3-401.

No.

17 years old. Colorado Revised Statutes Annotated § 18-3-402.

No.

Yes, unconsciousness falls within the definition of “physically helpless” and therefore the actor may be guilty of sexual assault and/or unlawful sexual contact when the victim is unconscious and the actor knows the victim is unconscious and the victim has not consented. Colorado Revised Statutes Annotated § 18-3-401.

Yes, any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if the actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant, or other means for the purpose of causing submission. Colorado Revised Statutes Annotated § 18-3-404.

Please note: as written, this part of the statute only applies in situations wherein the the perpetrator provides the intoxicants to the victim, unbeknownst to the victim. If the victim ingests intoxicants knowingly and voluntarily, it is unclear how this statute would apply. In such cases, other parts of Colorado Revised Statutes Annotated § 18-3-404 may apply. Please review statute for further detail.

Yes.

  • Married spouses:
    • There is a marital exception where there is any marital relationship between an actor and a victim where the elements of the unlawful sexual behavior offense specifically excludes a spouse, such as sexual assault, sexual assault on a child (person under the age of eighteen (18)), sexual assault on a child by a person of trust. Colorado Revised Statutes Annotated § 18-3-402; 18-3-405; 18-3-405.3; 18-3-409.
  • In the custody of law enforcement:
    • A victim who is in custody of law or detained in a hospital or other institution cannot consent to any sexual intrusion or sexual penetration with a person who has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search. Colorado Revised Statutes Annotated § 18-3-402.
  • Therapist and client:
    • A client cannot consent to any sexual intrusion, sexual penetration or sexual contact with the client’s psychotherapist. Colorado Revised Statutes Annotated § 18-3-405.5.
  • Child and any non-parent person in a position of trust over the child:
    • A child cannot consent to sexual contact with a person who is not the child’s spouse and where such person is in a position of trust with respect to the victim. Colorado Revised Statutes Annotated § 18-3-405.5.
    • A person occupies a “position of trust within the meaning of the statute where the person assumes an ongoing and continuous supervisory relationship with the victim. Pellman v. People, 252 P.3d 1122 (Colo. 2011).
Connecticut^

Lack of consent to sexual activity exists where:

  1. the accused compels the victim to engage in sexual activity by the use or threat of force against the victim;
  2. the victim is mentally incapacitated or mentally defective to the extent that the person is unable to consent to sexual activity; or
  3. the victim is physically helpless. Connecticut General Statutes Annotated §§ 53a-65; 53a-70; 53a-71; 53a-72a; 53a-73a.

Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling such person’s conduct owing to the influence of a drug or intoxicating substance administered to such person without such person’s consent, or owing to any other act committed upon such person without such person’s consent. Connecticut General Statutes Annotated § 53a-65.

Mentally defective” means that a person suffers from a mental disease or defect which renders such person incapable of appraising the nature of such person’s conduct. Connecticut General Statutes Annotated § 53a-65.

Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act. Connecticut General Statutes Annotated § 53a-65.

No.

16 years old. Connecticut General Statutes Annotated §§ 53a-71; 53a-90a.

No.

Yes, “physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act. Connecticut General Statutes Annotated § 53a-65.

Yes, “mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling such person’s conduct owing to the influence of a drug or intoxicating substance administered to such person without such person’s consent. Connecticut General Statutes Annotated § 53a-65.

Yes, both “sexual intercourse” and “sexual contact,” for the purpose of these sexual crimes, are defined as acts between persons that are not married. Connecticut General Statutes Annotated § 53a-65.

However, no spouse or cohabitor can compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury. Connecticut General Statutes Annotated § 53a-70b.

A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and:

  • such other person is less than 18 years old and the actor is such person's guardian or otherwise responsible for the general supervision of such person's welfare; or
  • such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or
  • the actor is a psychotherapist and such other person is (A) a patient of the actor and the sexual intercourse occurs during the psychotherapy session, (B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or (C) a patient or former patient of the actor and the sexual intercourse occurs by means of therapeutic deception; or
  • the actor accomplishes the sexual intercourse by means of false representation that the sexual intercourse is for a bona fide medical purpose by a health care professional; or
  • the actor is a school employee and such other person is a student enrolled in a school in which the actor works or a school under the jurisdiction of the local or regional board of education which employs the actor; or
  • the actor is a coach in an athletic activity or a person who provides intensive, ongoing instruction and such other person is a recipient of coaching or instruction from the actor and (A) is a secondary school student and receives such coaching or instruction in a secondary school setting, or (B) is under 18 years of age; or
  • the actor is 20 years of age or older and stands in a position of power, authority or supervision over such other person by virtue of the actor's professional, legal, occupational or volunteer status and such other person's participation in a program or activity, and such other person is under 18 years of age; or
  • such other person is placed or receiving services under the direction of the Commissioner of Developmental Services in any public or private facility or program and the actor has supervisory or disciplinary authority over such other person.

Connecticut General Statutes Annotated § 53a-71.

Delaware^

Without consent” means any of the following:

  • The defendant compelled the victim to submit by an act of coercion as defined in §§ 791 and 792, or by force, by gesture, or by threat of death, physical injury, pain or kidnapping to be inflicted upon the victim or a third party, or by any other means which would compel a reasonable person under the circumstances to submit. The victim need resist only to the extent that it is reasonably necessary to make the victim’s refusal to consent known to the defendant, unless such resistance would be futile or foolhardy.
  • The defendant knew the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed.
  • The defendant knew the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting.
  • Where the defendant is a health professional, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested.
  • The defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance.

Delaware Code § 761.

No.

16 years old. Delaware Code §§ 761; 762; 765; 770; 771; 778.

No.

Yes, there is no consent if the defendant knew the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed. Delaware Code § 761.

It can, but not in all circumstances. There is no consent if the defendant has substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance. Delaware Code § 761.

Yes.

  • If victim and perpetrator are married:
    • There is a marital exception to rape in the fourth degree which criminalizes sexual intercourse between another person who has not yet reached his or her eighteenth birthday, and a person who is 30 years of age or older a person. Such intercourse will not be unlawful if the victim and person are married at the time of such intercourse. Delaware Code § 770.
  • When the perpetrator is in a position of trust over the victim:
    • A person is guilty of unlawful sexual contact in the first degree when the person intentionally inflicts sexual contact on another person, and the victim is at least 4 years older than a child who has reached 16 years old but has not yet reached 18 years old and stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over a child, may not engage in sexual intercourse or penetration with that child. Delaware Code § 769.
    • A person is guilty of rape in the fourth degree when the person intentionally engages in sexual intercourse or sexual penetration with another person, and the victim is at least 4 years older than a child who has reached 16 years old but has not yet reached 18 years old and stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over a child, may not engage in sexual intercourse or penetration with that child. Delaware Code § 770.
    • Position of trust, authority or supervision over a child” includes, but is not limited to:
      • Familial or custodial authority or supervision; or
      • A teacher, instructor, coach, babysitter, day care provider, or aide or any other person having regular direct contact with children through affiliation with a school, church or religious institution, athletic or charitable organization or any other organization, whether such a person is compensated or acting as a volunteer.
  • Doctor and patient
    • Where the defendant is a health professional, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested.
  • Religious figure
    • Where the defendant is a health professional, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested.

Delaware Code § 761(d) and § 761(i)(4).

District of Columbia^

Consent” means words or overt actions indicating a freely given agreement to the sexual act or contact in question. Lack of verbal or physical resistance or submission by the victim, resulting from the use of force, threats, or coercion by the defendant shall not constitute consent. D.C. Code § 22-3001.

Yes. Consent to the sexual act or contact in question must be freely given agreement. D.C. Code § 22-3001.

16 years old. D.C. Code § 22-3001(5A).

No.

Yes. A person is unable to consent to engaging in a sexual act if such person is:

  • Incapable of declining participation in that sexual act; or
  • Incapable of communicating unwillingness to engage in that sexual act.

D.C. Code §§ 22-3003(2)(B)-(C), 22-3005(2)(B)-(C).

Yes. A victim’s ability to consent is impacted by his/her intoxication due to a drug, intoxicant, or other similar substance that substantially impairs the ability of that other person to appraise or control his or her conduct, given involuntarily or unknowingly given to the victim by the accused. D.C. Code §§ 22-3003.

Yes.

Sexual Abuse of a Minor

A minor in a significant relationship with a person who is over 18 cannot consent to sexual acts or sexual contact with such person. "Significant relationship" includes:

  • A parent, sibling, aunt, uncle, or grandparent, whether related by blood, marriage, domestic partnership, or adoption;
  • A legal or de facto guardian or any person, more than 4 years older than the victim, who resides intermittently or permanently in the same dwelling as the victim;
  • The person or the spouse, domestic partner, or paramour of the person who is charged with any duty or responsibility for the health, welfare, or supervision of the victim at the time of the act; and
  • Any employee or volunteer of a school, church, synagogue, mosque, or other religious institution, or an educational, social, recreational, athletic, musical, charitable, or youth facility, organization, or program, including a teacher, coach, counselor, clergy, youth leader, chorus director, bus driver, administrator, or support staff, or any other person in a position of trust with or authority over a child or a minor. D.C. Code § 22-3001(10).

Sexual Abuse of a Secondary Education Student.

  • A student under the age of 20 years enrolled in a secondary level school cannot consent to sexual acts or sexual conduct with any teacher, counselor, principal, coach, or other person of authority in that school or school system. § D.C. Code § 22–3009.03.
Florida^

Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. “Consent” shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender. Florida Statutes § 794.011.

Yes.

18 years old. Florida Statutes §§ 794.011; 794.05.

No.

Yes, “physically helpless” means unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act. Florida Statutes § 794.011.

A person that is physically helpless may not be able to provide intelligent, knowing, and voluntary consent.

Yes, “mentally incapacitated” means temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent. Florida Statutes § 794.011.

A person that is physically helpless may not be able to provide intelligent, knowing, and voluntary consent.

A person cannot consent to sexual activity with a law enforcement officer, correctional officer, or correctional probation officer, who is certified or is an elected official exempt from such certification or any other person in a position of control or authority in a probation, community control, controlled release, detention, custodial, or similar setting, and such officer, official, or person is acting in such a manner as to lead the victim to reasonably believe that the offender is in a position of control or authority as an agent or employee of government. Florida Statutes § 794.011(5)(e)(7).

A person less than 18 years of age cannot consent to engage in conduct which would constitute sexual battery with a person who is in a position of familial or custodial authority. Florida Statutes § 794.011 (8).

Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. Florida Statutes § 794.011 (1)(h).

Georgia^

The State of Georgia does not define consent in reference to sexual activity. However, consent has been implicitly interpreted as the “permission” of a person who is capable of giving such permission. Georgia Code § 16-6-1

No.

16 years old. Georgia Code § 16-6-3.

No.

Yes, a victim whose will is temporarily lost due to unconsciousness arising from use of drugs or other cause, or sleep is unable to consent to sexual activity. Gore v. State, 119 Ga. 418 (1904); Evans v. State, 67 Ga. App. 631 (1942).

Yes, a victim whose will is temporarily lost from intoxication, arising from use of drugs or other cause is unable to consent to sexual activity. Gore v. State, 119 Ga. 418 (1904); Evans v. State, 67 Ga. App. 631 (1942).

Yes.

  • A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person:
    • Is a teacher, principal, assistant principal, or other administrator of any school and engages in sexual contact with such other individual who the actor knew or should have known is enrolled at the same school; provided, however, that such contact shall not be prohibited when the actor is married to such other individual;
    • Is an employee or agent of any probation or parole office and engages in sexual contact with such other individual who the actor knew or should have known is a probationer or parolee under the supervision of the same probation or parole office;
    • Is an employee or agent of a law enforcement agency and engages in sexual contact with such other individual who the actor knew or should have known is being detained by or is in the custody of any law enforcement agency;
    • Is an employee or agent of a hospital and engages in sexual contact with such other individual who the actor knew or should have known is a patient or is being detained in the same hospital; or
    • Is an employee or agent of a correctional facility, juvenile detention facility, facility providing services to a person with a disability, as such term is defined in Code Section 37-1-1, or a facility providing child welfare and youth services, as such term is defined in Code Section 49-5-3, who engages in sexual contact with such other individual who the actor knew or should have known is in the custody of such facility. Georgia Code § 16-6-5.1(b).
  • A person who is an actual or purported practitioner of psychotherapy commits sexual assault when he or she engages in sexual contact with another individual who the actor knew or should have known is the subject of the actor's actual or purported treatment or counseling or the actor uses the treatment or counseling relationship to facilitate sexual contact between the actor and such individual. Georgia Code § 16-6-5.1(c).
  • A person who is an employee, agent, or volunteer at any facility licensed or required to be licensed under Code Section 31-7-3, 31-7-12, or 31-7-12.2 or who is required to be licensed pursuant to Code Section 31-7-151 or 31-7-173 commits sexual assault when he or she engages in sexual contact with another individual who the actor knew or should have known had been admitted to or is receiving services from such facility or the actor. Georgia Code § 16-6-5.1(d).

Consent is not a defense to offenses under section 16-6-5.1.

Guam^

Consent is not specifically defined. However, Guam law provides that a person commits a sex crime if the person engages in sexual penetration or sexual contact with another person and:

  • (1) force or coercion is used to accomplish the sexual penetration or sexual contact; or
  • (2) the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless. 9 G.C.A. § 25.15; 25.20; 25.25; 25.30.

Mentally Defective” means that a person suffers from a mental disease or defect which renders that person temporary or permanently incapable of appraising the nature of his or her conduct. 9 G.C.A. § 25.10.

Mentally Incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent. 9 G.C.A. § 25.10.

Physically Helpless” means that a person is unconscious, asleep or for any other reason is physically unable to communicate unwillingness to an act. 9 G.C.A. § 25.10.

Not specified.

16 years old. 9 G.C.A. § 25.15; 25.20; 25.25.

No.

Yes. A person commits a sex crime if the person engages in sexual penetration or sexual contact with another person and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness. 9 G.C.A. § 25.15; 25.20; 25.25; 25.30.

Yes. A person commits a sex crime if the person engages in sexual penetration or sexual contact with another person and the actor knows or has reason to know that the victim is mentally incapacitated, which includes intoxication. 9 G.C.A. § 25.15; 25.20; 25.25; 25.30.

No.

Hawaii^

Consent is not defined by statute. However, Hawaii law provides that a person commits a sex crime if:

  • the person subjects another person to a sexual act by compulsion; or
  • the person subjects to a sexual act another person who is mentally defective, mentally incapacitated, or physically helpless. HRS §§ 707-730; 707-731; 707-732.

Compulsion” means absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss. HRS §§ 707-700.

Mentally defective” means a person suffering from a disease, disorder, or defect which renders the person incapable of appraising the nature of the person’s conduct. HRS §§ 707-700.

Mentally incapacitated” means a person rendered temporarily incapable of appraising or controlling the person's conduct as a result of the influence of a substance administered to the person without the person's consent. HRS §§ 707-700.

Physically helpless” means a person who is unconscious or for any other reason physically unable to communicate unwillingness to an act. HRS §§ 707-700.

See also:

Consent signifies voluntary agreement or concurrence . . . [c]onsent may be express or implied.” State v. Adams, 10 Haw. App. 593, 605, 880 P.2d 226, 234 (1994).

Evidence that victim rebuffed offender’s sexual advances by repeatedly telling offender to stop, attempting to pull way, and telling offender that she did not want to be touched was sufficient to establish absence of consent. State v. Jackson, 81 Haw. 39, 46, 912 P.2d 71, 78 (1996).

Not in statute, though please see State v. Adams above for more information.

16 years old. HRS §§ 707-730.

No.

Yes. A person commits a sex crime if the person subjects to a sexual act another person who is physically helpless, which includes a person who is unconscious. HRS §§ 707-730; 707-731; 707-732.

Yes. A person commits a sex crime if the person subjects to a sexual act another person who is mentally defective or mentally incapacitated, which includes a person who is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a substance administered to the person without the person’s consent.

Yes.

  • Marriage:
    • Marriage is a defense to a charge of first or third degree sexual assault of a child that is 14 or 15 years of age. HRS §§ 707-730; 707-732; 707-734.
  • State correctional facility, elderly caretaker, law enforcement officer:
    • A person commits a sex crime if the person, while employed in a state correctional facility, by a private company providing services at a correctional facility, by a private company providing community-based residential services to persons committed to the director of public safety and having received notice of the statute at issue, by a private correctional facility operating in the State of Hawaii, or as a law enforcement officer, knowingly subjects to a sexual act an imprisoned person, a person confined to a detention facility, a person committed to the director of public safety, a person residing in a private correctional facility operating in the State of Hawaii, or a person in custody. HRS § 707-731; 707-732.
Idaho^

Consent is not specifically defined.

However, Idaho law provides that a person commits a sex crime if the person engages in a sexual act with a female and:

  • the victim is incapable, through any unsoundness of mind, due to any cause including, but not limited to, mental illness, mental disability or developmental disability, whether temporary or permanent, of giving legal consent;
  • the victim resists but the resistance is overcome by force or violence;
  • the victim is prevented from resistance by the infliction, attempted infliction, or threatened infliction of bodily harm, accompanied by apparent power of execution;
  • the victim is unable to resist due to any intoxicating, narcotic, or anesthetic substance;
  • the victim is unconscious of the nature of the act;
  • the victim submits under the belief that the person committing the act is her husband or someone other than the accused, and the belief is induced by artifice, pretense or concealment practiced by the accused with intent to induce such belief; or
  • the victim submits under the belief, instilled by the actor, that if she does not submit, the actor will cause physical harm to some person in the future, cause damage to the property, engage in other conduct constituting a crime, accuse any person of a crime or cause criminal charges to be instituted against her, or expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule. Idaho Statutes § 18-6101. See Idaho Statutes § 18-6108 for male victims.

No.

18 years old. Idaho Statutes §§ 18-6101; 18-6108.

No.

Yes. A person commits a sex crime if the person engages in a sexual act with a female and the victim at the time is unconscious of the nature of the act due to being:

  • unconscious or asleep, or
  • not aware, knowing, perceiving, or cognizant that the act occurred. Idaho Statutes § 18-6101.

However, for male victims, a sex crime is committed where the victim is at the time unconscious of the nature of the act, and this is known to the accused. Idaho Statutes § 18-6108.

Yes. A person commits a sex crime if the person engages in a sexual act with a female and the victim is unable to resist due to any intoxicating, narcotic, or anesthetic substance. Idaho Statutes § 18-6101.

However, for male victims, a sex crime is committed where the victim is prevented from resistance by the use of any intoxicating, narcotic, or anesthetic substance administered by or with the privity of the accused. Idaho Statutes § 18-6108.

Yes.

  • Marriage:
    • No person can be convicted of rape for any act or acts with that person’s spouse, except where
      • the victim resists but her resistance is overcome by force or violence; or
      • the victim is prevented from resistance by the infliction, attempted infliction, or threatened infliction of bodily harm, accompanied by apparent power of execution; or the victim is unable to resist due to any intoxicating, narcotic, or anesthetic substance. Idaho Statutes §§ 18-6101; 18-6107.
  • State officers:
    • it is a felony for any employee of the Idaho department of correction, Idaho department of juvenile corrections, or any officer, employee or agent of a state, local, or private correctional facility to have sexual contact with a prisoner or juvenile offender, not their spouse, whether an in-state or out-of-state prisoner or juvenile offender;
    • it is a felony for any supervising officer to knowingly have sexual contact with any parolee or probationer who is not the person's spouse. Idaho Statutes § 18-6110.
Illinois^

Consent” means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent. A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct. 720 ILCS 5/11-1.70.

Yes, it requires “freely given agreement” to the act of sexual penetration or sexual conduct in question. 720 ILCS 5/11-1.70.

17 years old. 720 ILCS 5/11-1.60.

No. However, the crime and punishment is more severe if the victim is 60 years of age or older. 720 ILCS 5/11-1.30; 720 ILCS 5/11-1.60.

Yes. A person commits a sex crime if that person knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. 720 ILCS 5/11-1.20; 720 ILCS 5/11-1.50.

Yes. A person commits a sex crime if that person knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. 720 ILCS 5/11-1.20; 720 ILCS 5/11-1.50.

In addition, the crime and punishment is more severe if the accused delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim’s consent or by threat or deception for other than medical purposes. 720 ILCS 5/11-1.30; 720 ILCS 5/11-1.60.

Yes. A person commits custodial sexual misconduct when:

  • he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system or
  • he or she is an employee of a treatment and detention facility and engages in sexual conduct or sexual penetration with a person who is in the custody of that treatment and detention facility. 720 ILCS 5/11-9.2.

Also, a probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or after case specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or release, or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration. 720 ILCS 5/11-9.2.

In addition, a person commits sexual misconduct with a person with a disability when:

  • he or she is an employee and knowingly engages in sexual conduct or sexual penetration with a person with a disability who is under the care and custody of the Department of Human Services at a State-operated facility; or
  • he or she is an employee of a community agency funded by the Department of Human Services and knowingly engages in sexual conduct or sexual penetration with a person with a disability who is in a residential program operated or supervised by a community agency. 720 ILCS 5/11-9.5.
Indiana^

Consent is not specifically defined. However, Indiana law provides that a person commits a sex crime if: (1) the victim is compelled by force or imminent threat of force, (2) the victim is unaware that the sexual intercourse or other sexual conduct is occurring, or (3) the victim is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct cannot be given. IC §§ 35-42-4-1; 35-42-4-8.

No.

16 years old. IC §§ 35-42-4-9.

No.

Yes. A person commits a sex crime if the other person is unaware that the sexual intercourse or other sexual conduct is occurring. IC §§ 35-42-4-1; 35-42-4-8.

Yes, if the intoxication causes the victim to be unaware that the sexual intercourse or other sexual conduct is occurring. IC §§ 35-42-4-1; 35-42-4-8.

In addition, the crime and punishment is more severe if the offense is facilitated by furnishing the victim, without the victim’s knowledge, with a drug or a controlled substance or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge. IC §§ 35-42-4-1; 35-42-4-3; 35-42-4-5; 35-42-4-8; 35-42-4-9.

Yes. It is a defense to sexual misconduct with a minor if the child is or has ever been married, except where the sexual misconduct is committed by using or threatening the use of deadly force or by furnishing the victim, without the victim’s knowledge, with a drug or other controlled substance or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge. IC § 35-42-4-9.

In addition, a person commits child seduction if:

  • (1) a person who is at least 18 years of age and is the guardian, adoptive parent, adoptive grandparent, custodian, stepparent, or child care worker for a child at least 16 years of age but less than 18 years of age engages in sexual acts with the child;
  • (2) a person who (i) has had a professional relationship with a child at least 16 years of age but less than 18 years of age whom the person knows to be at least 16 years of age but less than 18 years of age; (ii) may exert undue influence on the child because of the person’s current or previous professional relationship with the child; and (iii) uses or exerts the person’s professional relationship to engage in sexual acts with the child;
  • (3) a law enforcement officer who is at least 5 years older than a child who is at least 16 years of age and less than 18 years of age had contact with the child while acting within the scope of the law enforcement officer’s official duties with respect to the child, and uses the law enforcement officer’s professional relationship with the child to engage in sexual acts with the child.

IC § 35-42-4-7.

Iowa^

Consent is not specifically defined. However, Iowa law defines “sexual abuse” as any sex act between persons where

  • (1) the sexual act is done by force or against the will of the other;
  • (2) the consent or acquiescence of the victim is procured by threats of violence;
  • (3) the victim is under the influence of a drug inducing sleep or otherwise in a state of unconsciousness;
  • (4) victim is suffering from a mental defect or incapacity which precludes giving consent;
  • (5) the victim lacks the mental capacity to know the right and wrong of conduct in sexual matters.   I.C.A. § 709.1.

It is not necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. I.C.A. § 709.5.

No.

16 years old. I.C.A. § 709.4.

No.

Yes. Sexual abuse is defined as any sex act between persons if the act is done while the other person is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness. I.C.A. § 709.1.

In addition, a person commits a sex crime if

  • (1) the sex act is between persons who are not cohabitating as husband and wife and the other person is suffering from a defect or incapacity which precludes giving consent or
  • (2) the act is performed while the other person is physically helpless. I.C.A. § 709.4.

Yes. A person commits a sex crime if

  • (1) the sex act is performed while the other person is under the influence of a controlled substance which prevents that person from consenting to the act and the person performing the act knows or reasonably should have known that the other person was under the influence of the controlled substance or
  • (2) the sex act is performed while the other person is mentally incapacitated. I.C.A. § 709.4.

Yes. If the sex act is between persons cohabitating as husband and wife at the time of the act, a person does not commit sexual abuse in the third degree even where

  • (1) the other person is suffering from a mental defect or incapacity which precludes giving consent or
  • (2) the victim is 12 to 15 years old. I.C.A. § 709.4.

I.C.A. § 709.8 provides a marriage exception for “lascivious acts with a child.”

I.C.A. § 709.12 provides a marriage exception for “indecent contact with a child.”

In addition, sexual exploitation by a counselor or therapist occurs when there is sexual conduct with:

  • (1) an emotionally dependent patient or client or emotionally dependent former patient or client; or
  • (2) a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist. I.C.A. § 709.15.

Sexual exploitation by a school employee occurs when there is sexual conduct with a student. I.C.A. § 709.15.

Iowa also criminalizes sex acts by:

  • (1) any peace officer, or an officer, employee, contractor, vendor, volunteer or agent of the department of corrections, or an officer, employee, or agent of a judicial district department of correctional services, with an individual committed to the custody of the department of corrections or a judicial district department of correctional services; or
  • (2) by any peace officer, or an officer, employee, contractor, vendor, volunteer or agent of a juvenile placement facility with a juvenile placed at such facility. I.C.A. § 709.16.
Kansas^

Consent is not specifically defined. However, Kansas law provides that a person commits a sex crime when:

  • (1) the victim is overcome by force or fear;
  • (2) the victim is unconscious or physically powerless;
  • (3) the victim is incapable of giving consent because of mental deficiency or disease, or because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender;
  • (4) the victim’s consent was obtained through a knowing misrepresentation that the sexual intercourse was a medically or therapeutically necessary procedure;
  • (5) the victim’s consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender’s authority. K.S.A. 21-5503.

See also:

The test for consent under that provision is whether the individual understands the nature and consequences of the proposed act. State v. Ice, 27 Kan. App. 2d 1, 4, 997 P.2d 737, 740 (2000).

If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent. State v. Ice, 27 Kan. App. 2d 1, 5, 997 P.2d 737, 740 (2000).

A person may be convicted of rape if intercourse begins consensually but consent is withdrawn after penetration and the intercourse continues by force or fear. State v. Flynn, 299 Kan. 1052, 1053, 329 P.3d 429, 430 (2014).

No.

16 years old. K.S.A. 21-5506; 5507.

No.

Yes. A person commits a sex crime where the person otherwise meets the elements of the sex crime and the victim is unconscious or physically powerless. K.S.A. 21-5503.

Yes. A person commits a sex crime where the person otherwise meets the elements of the sex crime and the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender. K.S.A. 21-5503.

Yes. It is a defense to a prosecution of rape for engaging in sexual intercourse with a child who is under 14 years of age that the child was married to the accused at the time of the offense. K.S.A. 21-5503. It is a defense to a prosecution of criminal sodomy (for sodomy with a child 14 or more years of age but less than 16 years of age) and aggravated criminal sodomy (for sodomy with a child who is under 14 years of age) that the child was married to the accused at the time of the offense. K.S.A. 21-5504. It is a defense to a prosecution of indecent liberties with a child (as defined in subsection (a)(1)) and aggravated indecent liberties with a child (as defined in subsections (b)(1), (b)(2)(A) and (b)(3)(A)) that the child was married to the accused at the time of the offense. K.S.A. 21-5506.

In addition, a person commits a sex crime when:

  • (1) the offender is an employee or volunteer of the department of corrections, or the employee or volunteer of a contractor who is under contract to provide services for a correctional institution, and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is an inmate;
  • (2) the offender is a parole officer, volunteer for the department of corrections or the employee or volunteer of a contractor who is under contract to provide supervision services for persons on parole, conditional release or postrelease supervision and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is an inmate who has been released on parole, conditional release or postrelease supervision and the offender has knowledge that the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is an inmate who has been released and is currently on parole, conditional release or postrelease supervision;
  • (3) the offender is a law enforcement officer, an employee of a jail, or the employee of a contractor who is under contract to provide services in a jail and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined to such jail;
  • (4) the offender is a law enforcement officer, an employee of a juvenile detention facility or sanctions house, or the employee of a contractor who is under contract to provide services in such facility or sanctions house and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined to such facility or sanctions house;
  • (5) the offender is an employee of the department of corrections or the employee of a contractor who is under contract to provide services in a juvenile correctional facility and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined to such facility;
  • (6) the offender is an employee of the department of corrections or the employee of a contractor who is under contract to provide direct supervision and offender control services to the department of corrections and: (A) The person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person l6 years of age or older who has been: (i) Released on conditional release from a juvenile correctional facility under the supervision and control of the department of corrections or juvenile community supervision agency; or (ii) placed in the custody of the department of corrections under the supervision and control of the department of corrections or juvenile community supervision agency; and (B) the offender has knowledge that the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is currently under supervision;
  • (7) the offender is an employee of the Kansas department for aging and disability services or the Kansas department for children and families or the employee of a contractor who is under contract to provide services in an aging and disability or children and families institution or to the Kansas department for aging and disability services or the Kansas department for children and families and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is a patient in such institution or in the custody of the secretary for aging and disability services or the secretary for children and families;
  • (8) the offender is a worker, volunteer or other person in a position of authority in a family foster home licensed by the department of health and environment and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is a foster child placed in the care of such family foster home;
  • (9) the offender is a teacher or other person in a position of authority and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is a student enrolled at the school where the offender is employed;
  • (10) the offender is a court services officer or the employee of a contractor who is under contract to provide supervision services for persons under court services supervision and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who has been placed on probation under the supervision and control of court services and the offender has knowledge that the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is currently under the supervision of court services;
  • (11) the offender is a community correctional services officer or the employee of a contractor who is under contract to provide supervision services for persons under community corrections supervision and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who has been assigned to a community correctional services program under the supervision and control of community corrections and the offender has knowledge that the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is currently under the supervision of community corrections; or
  • (12) the offender is a surety or an employee of a surety and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is the subject of a surety or bail bond agreement with such surety and the offender has knowledge that the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is the subject of a surety or bail bond agreement with such surety.

K.S.A. § 21-5512.

Kentucky^

Lack of consent” results from:

  • (1) forcible compulsion;
  • (2) incapacity to consent; or
  • (3) if the offence charged is sexual abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.

A person is also “deemed incapable of consent” when he or she is

  • (1) an individual with an intellectual disability or an individual that suffers from mental illness;
  • (2) mentally incapacitated;
  • (3) physically helpless; or
  • (4) under the care or custody of state or local agency pursuant to court order and the actor is employed or working on behalf of the state or local agency. KRS § 510.020.

Mental illness” means a diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) and any subsequent revision thereto, of the American Psychiatric Association. KRS § 510.010.

Individual with an intellectual disability” means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. KRS § 510.010.

Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his conduct as a result of the influence of an intoxicating substance administered to him without his consent or as a result of any other act committed upon him without his consent. KRS § 510.010.

Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act.” KRS § 510.010.

No.

16 years old. KRS § 510.020.

No.

Yes. A person is deemed incapable of consent when he or she is physically helpless, which includes unconsciousness. KRS § 510.020.

Yes. A person is deemed incapable of consent when he or she is mentally incapacitated, which includes intoxication, or if the intoxication causes the person to be physically helpless. KRS § 510.020.

Yes.

  • Marriage
    • A person who engages in sexual intercourse or deviate sexual intercourse with another person to whom the person is married, or subjects another person to whom the person is married to sexual contact, does not commit an offense under this chapter regardless of the person's age solely because the other person is less than sixteen (16) years old or an individual with an intellectual disability. KRS § 510.035.
  • In addition, a person is guilty of rape in the third degree if the person is:
    • (1) 21 years old or more, and he/she engages in sexual intercourse with another person less than 18 years old and for who he or she provides a foster family home; or
    • (2) in a position of authority or position of special trust and he/she engages in sexual intercourse with a minor under 18 years old with whom he/she comes into contact as a result of that position;
    • (3) a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility, or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to sexual intercourse. KRS § 510.060.
Louisiana^

Consent is not defined. However, Louisiana law provides that a person commits a sex crime:

  • (1) when the victim resists the act to the utmost, but whose resistance is overcome by force;
  • (2) when the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution;
  • (3) when the victim is prevented from resisting the act because the offender is armed with a dangerous weapon;
  • (4) when two or more offenders participated in the act;
  • (5) when the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance (“mental infirmity” means a person with an intelligence quotient of seventy or lower; “physical infirmity” means a person who is a quadriplegic or paraplegic);
  • (6) when the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape;
  • (7) when the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim;
  • (8) when the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity;
  • (9) when the victim, through unsoundness of mind, is temporarily or permanently incapable of understanding the nature of the act and the offender knew or should have known of the victim's incapacity;
  • (10) when the female victim submits under the belief that the person committing the act is her husband and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender. LSA-R.S. 14:42, LSA-R.S. 14:42.1, LSA-R.S. 14:43, LSA-R.S. 14:43.1.

No.

17 years old. LSA-R.S. 14:80.

No.

Yes. The following are deemed to be without the lawful consent of the victim:

  • (1) when the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind, which would likely include unconsciousness, produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim;
  • (2) when the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause, which would likely include unconsciousness, and the offender knew or should have known of the victim's incapacity. LSA-R.S. 14:42.1, LSA-R.S. 14:43.

Yes. The following are deemed to be without the lawful consent of the victim:

  • (1) when the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim;
  • (2) when the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity. LSA-R.S. 14:42.1, LSA-R.S. 14:43.

Yes. It is a defense to a charge of sexual battery with a child under the age of 15 or carnal knowledge of a juvenile that the actor is the child’s spouse. LSA-R.S. 14:43.1; LSA-R.S. 14:80.

Also, prohibited sexual conduct between an educator and a student is committed when:

  • (1) an educator has sexual intercourse with a person who is 17 years of age or older, but less than 21 years of age, where there is an age difference of greater than 4our years between the two persons, when the victim is not the spouse of the offender and is a student at the school where the educator is assigned, employed, or working at the time of the offense;
  • (2) an educator commits any lewd or lascivious act upon a student or in the presence of a student who is 17 years of age or older, but less than 21years of age, where there is an age difference of greater than 4 years between the two persons, with the intention of gratifying the sexual desires of either person, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense;
  • (3) an educator intentionally engages in the touching of the anus or genitals of a student 17 years of age or older, but less than 21 years of age, where there is an age difference of greater than 4 years between the two persons, using any instrumentality or any part of the body of the educator, or the touching of the anus or genitals of the educator by a person 17 years of age or older, but less than 21 years of age, where there is an age difference of greater than 4 years between the two persons, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense using any instrumentality or any part of the body of the student. The consent of a student, whether or not that student is 17 years of age or older is not a defense. LSA-R.S. 14:81.4.
Maine^

Consent is not specifically defined.

However, Maine law provides that a person is guilty of a sex crime if that person engages in a “sexual act” with another person and:

  • (1) the other person submits as a result of compulsion;
  • (2) the other person, not the actor’s spouse, has not in fact attained the age of 14 years;
  • (3) the other person, not the actor's spouse, has not in fact attained 12 years of age;
  • (4) the actor has substantially impaired the other person's power to appraise or control the other person's sexual acts by furnishing, administering or employing drugs, intoxicants or other similar means;
  • (5) the actor compels or induces the other person to engage in the sexual act by any threat;
  • (6) the other person suffers from mental disability that is reasonably apparent or known to the actor, and which in fact renders the other person substantially incapable of appraising the nature of the contact involved or of understanding that the person has the right to deny or withdraw consent;
  • (7) the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual act;
  • (8) the other person, not the actor’s spouse, is either 14 or 15 years of age and the actor is at least 5 years older than the other person;
  • (9) the actor is the actor is at least 21 years of age and engages in a sexual act with another person, not the actor’s spouse, who is either 16 or 17 years of age and is a student enrolled in a private or public elementary, secondary or special education school, facility or institution and the actor is a teacher, employee or other official in the school district, school union, educational unit, school, facility or institution in which the student is enrolled. 17-A M.R.S.A. 253, 254.

A person is also guilty of a sex crime if the actor intentionally subjects another person to any “sexual contact” and:

  • (1) the other person has not expressly or impliedly acquiesced in the sexual contact;
  • (2) the other person is unconscious or otherwise incapable of resisting and has not consented to the sexual contact ;
  • (3) the other person, not the actor's spouse, is in fact less than 14 years of age and the actor is at least 3 years older;
  • (4) the other person, not the actor's spouse, is in fact less than 12 years of age and the actor is at least 3 years older;
  • (5) the other person, not the actor’s spouse, is in fact either 14 or 15 years of age and the actor is at least 10 years older than the other person;
  • (6) the other person suffers from a mental disability that is reasonably apparent or known to the actor that in fact renders the other person substantially incapable of appraising the nature of the contact involved or of understanding that the other person has the right to deny or withdraw consent. 17-A M.R.S.A. 255-A.

A person is guilty of a sex crime if the actor intentionally subjects another person to any “sexual touching” if:

  • (1) the other person has not expressly or impliedly acquiesced in the sexual touching;
  • (2) the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual touching;
  • (3) the other person, not the actor’s spouse, is in fact less than 14 years of age and the actor is at least 5 years older;
  • (4) the other person suffers from a mental disability that is reasonably apparent or known to the actor that in fact renders the other person substantially incapable of appraising the nature of the contact involved or of understanding that the other person has the right to deny or withdraw consent. 17-A M.R.S.A. 260.

No.

16 years old. 17-A M.R.S.A. 254.

Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and the actor is employed to provide care to a dependent person, who is not the actor's spouse or domestic partner and who is unable to perform self-care because of advanced age or physical or mental disease, disorder or defect. 17-A M.R.S.A. 253, 255-A, 260.

Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual act. 17-A M.R.S.A. 253, 255-A, 260.

Yes. A person is guilty of a sex crime if that person engages in a “sexual act” with another person and the actor has substantially impaired the other person's power to appraise or control the other person's sexual acts by furnishing, administering or employing drugs, intoxicants or other similar means. 17-A M.R.S.A. 253.

Please note that the above only applies if the perpetrator provides the intoxicants to the victim, but says nothing about instances in which the victim voluntarily consumed alcohol, that was not provided by the perpetrator, prior to the assault.

Yes.

  • Marriage is a defense to certain sex crimes.
  • Maine also criminalizes sex acts when there is a particular relationship between the actor and other person, regardless of consent. For example, a person is guilty of a sex crime if that person engages in a sexual act or contact with another person and:
    • (1) the other person, not the actor's spouse, is under official supervision as a probationer, a parolee, a sex offender on supervised release, a prisoner on supervised community confinement status or a juvenile on community reintegration status or is detained in a hospital, prison or other institution, and the actor has supervisory or disciplinary authority over the other person;
    • (2) the other person, not the actor's spouse, has not in fact attained the age of 18 years and is a student enrolled in a private or public elementary, secondary or special education school, facility or institution and the actor is a teacher, employee or other official having instructional, supervisory or disciplinary authority over the student;
    • (3) the other person, not the actor's spouse, has not attained the age of 18 years and is a resident in or attending a children's home, child care facility, facility operated by a family child care provider, children's residential care facility, drug treatment center, youth camp licensed or similar school, facility or institution regularly providing care or services for children, and the actor is a teacher, employee or other person having instructional, supervisory or disciplinary authority over the other person;
    • (4) the other person has not in fact attained the age of 18 years and the actor is a parent, stepparent, foster parent, guardian or other similar person responsible for the long-term care and welfare of that other person;
    • (5) the actor is a psychiatrist, a psychologist or licensed as a social worker or purports to be a psychiatrist, a psychologist or licensed as a social worker to the other person and the other person, not the actor's spouse, is a current patient or client of the actor;
    • (6) the actor owns, operates or is an employee of an organization, program or residence that is operated, administered, licensed or funded by the Department of Health and Human Services and the other person, not the actor's spouse, receives services from the organization, program or residence and the organization, program or residence recognizes the other person as a person with an intellectual disability or autism;
    • (7) the actor owns, operates or is an employee of an organization, program or residence that is operated, administered, licensed or funded by the Department of Health and Human Services and the other person, not the actor's spouse, receives services from the organization, program or residence and suffers from a mental disability that is reasonably apparent or known to the actor;
    • (8) the actor is employed to provide care to a dependent person, who is not the actor's spouse or domestic partner and who is unable to perform self-care because of advanced age or physical or mental disease, disorder or defect.
Maryland^

Consent is not specifically defined.

However, Maryland law provides that a person commits a sex crime if that person engages in “vaginal intercourse” or “sexual act” with another:

  • (1) by force, or the threat of force, without the consent of the other;
  • (2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual;
  • (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim;
  • (4) if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old;
  • (5) if the victim is 14 or 15 years old, and the person performing the act is at least 4years older than the victim. MD Code, Criminal Law, § 3-304; § 3-306; § 3-307.

Mentally defective individual” means an individual who suffers from mental retardation or a mental disorder, either of which temporarily or permanently renders the individual substantially incapable of:

  • (1) appraising the nature of the individual's conduct;
  • (2) resisting vaginal intercourse, a sexual act, or sexual contact; or
  • (3) communicating unwillingness to submit to vaginal intercourse, a sexual act, or sexual contact.

Mentally incapacitated individual” means an individual who, because of the influence of a drug, narcotic, or intoxicating substance, or because of an act committed on the individual without the individual's consent or awareness, is rendered substantially incapable of:

  • (1) appraising the nature of the individual's conduct; or
  • (2) resisting vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

Physically helpless individual” means an individual who:

  • (1) is unconscious; or
  • (2)
    • (i) does not consent to vaginal intercourse, a sexual act, or sexual contact; and
    • (ii) is physically unable to resist, or communicate unwillingness to submit to, vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

Maryland law also provides that a person may not engage in sexual contact with another:

  • (1) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual;
  • (2) if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim. MD Code, Criminal Law, § 3-307.

See also:

In the case of a conscious and competent victim, mere passivity on the victim's part will not establish the absence of consent. The law looks for express negation or implicit negation as evidenced by some degree of physical resistance or an explanation of why the will to resist was overcome by force or fear of harm. Travis v. State, 218 Md. App. 410, 428, 98 A.3d 281, 291 (2014).

It is well settled that the terms “against the will” and “without the consent” are synonymous in the law of rape. State v. Rusk, 289 Md. 230, 241, 424 A.2d 720, 725 (1981).

Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse. On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape. Battle v. State, 287 Md. 675, 684, 414 A.2d 1266, 1270 (1980).

No.

16 years old. MD Code, Criminal Law, § 3-308.

No.

Yes. A person may not engage in “vaginal intercourse,” “sexual act,” or “sexual contact” with another if the victim is a mentally defective individual or mentally incapacitated individual and the person performing the act knows or reasonably should know that the victim is a mentally defective or mentally incapacitated individual. MD Code, Criminal Law, § 3-304; 3-306; 3-307.

Yes. A person may not engage in “vaginal intercourse,” “sexual act,” or “sexual contact” with another if the victim is a mentally incapacitated individual, and the person performing the act knows or reasonably should know that the victim is a mentally incapacitated individual. MD Code, Criminal Law, § 3-304; 3-306; 3-307.

Yes.

Age of consent law applies differently if the actor is a teacher or other school employee who is in a position of authority over the other person. Such persons may not engage in sexual activity with school students. MD Code, Criminal Law, § 3-308.

A correctional employee (and other related employees such as an employee of a contractor providing goods and services to a correctional facility) may not engage in “sexual contact,” “vaginal intercourse,” or a “sexual act” with an inmate. MD Code, Criminal Law, § 3-314.

A person may also not engage in “sexual contact,” “vaginal intercourse,” or a “sexual act” with an individual confined in a child care institution licensed by the Department, a detention center for juveniles, or a facility for juveniles. MD Code, Criminal Law, § 3-314.

A person may not be prosecuted for rape in the first degree, rape in the second degree, sexual offense in the third degree, or sexual offense in the fourth degree against a victim who was the person’s legal spouse at the time of the alleged rape or sexual offense. MD Code, Criminal Law, § 3-318. There are exceptions for separation or use of force and limited divorce. MD Code, Criminal Law, § 3-318.

Massachusetts^

Consent is not specifically defined. The standard in the sexual assault statutes is whether the accused compels the victim to submit by force and against his or her will, or compels such person to submit by threat of bodily injury. Mass. Gen. Laws. Ann. Ch. 265 §22.

Not specified.

16 to 18 years old depending on the crime below.

  • Statutory rape is defined as sexual intercourse or unnatural sexual intercourse with a child under 16. Gen. Laws. Ann. ch. 265, § 23.
  • It is a crime to induce a person under 18 of chaste life to have unlawful sexual intercourse. Mass. Gen. Laws. Ann. ch. 272 §4.  

No. However, the punishment for indecent assault and battery on an elder (a person sixty years of age or older) is more severe. Mass. Gen. Laws. Ann. ch. 265, §13H.

Yes, incapacity to consent or where the victim is wholly insensible so as to be incapable of consenting satisfies the element of nonconsent. Com. v. Blache, 880 N.E.2d 736, 450 Mass (2008).

Yes, if such intoxication renders the person incapable of giving consent. Com. v. Urban, 880 N.E.2d 753, 450 Mass. 608 (2008).

No.

However, it is aggravated statutory rape (which carries a harsher punishment) for a person that is a “mandated reporter” at the time of the act to have sexual intercourse or unnatural sexual intercourse with a child under 16 years of age. Mass. Gen. Laws. Ann. ch. 265, §23A.

Mandated reporter” means a person who is:

  • (i) a physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist, optometrist, osteopath, allied mental health and human services professional licensed under section 165 of chapter 112, drug and alcoholism counselor, psychiatrist or clinical social worker;
  • (ii) a public or private school teacher, educational administrator, guidance or family counselor, child care worker, person paid to care for or work with a child in any public or private facility, or home or program funded by the commonwealth or licensed under chapter 15D that provides child care or residential services to children or that provides the services of child care resource and referral agencies, voucher management agencies or family child care systems or child care food programs, licensor of the department of early education and care or school attendance officer;
  • (iii) a probation officer, clerk-magistrate of a district court, parole officer, social worker, foster parent, firefighter, police officer;
  • (iv) a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, or person employed by a church or religious body to supervise, educate, coach, train or counsel a child on a regular basis;
  • (v) in charge of a medical or other public or private institution, school or facility or that person's designated agent; or
  • (vi) the child advocate. Mass. Gen. Laws. Ann. ch. 119, §21.
Michigan^

Consent is not specifically defined. The standard used in the sexual assault statutes is whether the accused used “force or coercion to accomplish the sexual [act].” Mich. Comp. Laws. Ann. § 750.520b – e.

Not specified.

16 years old, unless such person is employed at the victim’s school in which case the age of consent is 18 years old.

Mich. Comp. Laws. Ann. § 750.520b – e.

No.

Yes. A person is guilty of criminal sexual conduct if the person engages in sexual penetration or contact and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness. Mich. Comp. Laws. Ann. § 750.520d(1)(c) and Mich. Comp. Laws. Ann. § 750.520e(1)(c).

Physically helpless” means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act. Mich. Comp. Laws Ann. § 750.520a(m).

Yes, if the intoxication is as a result of a narcotic, anesthetic or other substance administered to that person without his or her consent. See definition of “Mentally Incapacitated” Mich. Comp. Laws. Ann. § 750.520a(k).

Yes.

Criminal sexual conduct in the third or fourth degree occurs if (1) the victim is at least 16 but less than 18 years of age or (2) the victim is at least 16 but less than 26 and is receiving special education services, and, in each case, is a student at a school where the actor is employed or volunteers. Mich. Comp. Laws Ann. § 750.520d – e.  

Criminal sexual conduct in the first or second degree occurs if the victim is at least 13 but less than 16 years of age and any of the following:

  • The actor is a member of the same household as the victim;
  • The actor is related to the victim by blood or affinity to the fourth degree.
  • The actor is in a position of authority over the victim and used this authority to coerce the victim to submit;
  • The actor is a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled;
  • The actor is an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person is enrolled, or is a volunteer who is not a student in any public school or nonpublic school, or is an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor uses his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person; or
  • The actor is an employee, contractual service provider, or volunteer of a child care organization, or a person licensed to operate a foster family home or a foster family group home in which that other person is a resident, and the sexual penetration occurs during the period of that other person's residency.

Mich. Comp. Laws Ann. § 750.520b – c.

Minnesota^

"Consent" means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act. Further:

  • A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.
  • Corroboration of the victim’s testimony is not required to show lack of consent.

Minn. Stat. § 609.341.

Yes, the definition requires words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.

16 years old, unless the actor is in a position authority or has a significant relationship with the victim in which case the age of consent is 18 years old. If the younger party is under the age of 13, the older party must be no more than 36 months older. If the younger party is 13, 14 or 15 years old, the other person must be no more than 48 months older. Minn. Stat. § 609.342.

No.

Yes. A person who is physically helpless (which includes unconsciousness) cannot consent to a sexual act. Minn. Stat. § 609.341.

It constitutes criminal sexual conduct if the actor commits sexual penetration or contact and knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless. Minn. Stat. § 609.342, Minn. Stat. § 609.343.

Yes, if such intoxication causes results in the victim becoming physically helpless. 

  • State v. Berrios, 788 N.W.2d 135, App.2010 (finding that evidence was sufficient to support finding that complainant was physically helpless, thus supporting charge of third-degree criminal sexual conduct relating to sexual encounter between defendant and complainant, where complainant testified that she was severely intoxicated and that she was unconscious when defendant penetrated her, and gaps in complainant's memory were consistent with testimony that she was severely intoxicated).

Yes, a “significant relationship” or “position of authority” can affect the age of consent.

  • The following acts constitute criminal sexual conduct in the first and second degree:
    • Complainant is at least 13 but less than 16 years of age, and actor is more than 48 months older than the complainant, and in a position of authority over the complainant (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
    • The actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration or contact (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
    • The actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration or contact, and the actor or an accomplice used force or coercion to accomplish the act, the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
    • Minn. Stat. § 609.342, Minn. Stat. § 609.343.
  • The following acts constitute criminal sexual conduct in the third or fourth degree:
    • Complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant shall be a defense.
    • The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact. Neither mistake as to the complainant's age nor consent to the act by the complainant shall be a defense.
    • The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact, and the actor or accomplice used force or coercion to accomplish the act, or the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time. Neither mistake as to the complainant's age nor consent to the act by the complainant shall be a defense.
    • Minn. Stat. § 609.344, Minn. Stat. § 609.345.
  • The following acts constitute criminal sexual conduct in the fourth degree:
    • Complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant. Consent is not a defense.  If the actor is no more than 120 months older than the complainant, it shall be an affirmative defense (which must be proved by a preponderance of the evidence), that the actor reasonably believes the complainant to be 16 years of age or older. In all other cases, mistake as to age shall not be a defense. Stat. § 609.345.
  • Significant relationship” includes a situation in which the actor is:
    • The complainant’s parent, stepparent, or guardian, or
    • Any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt, or
    • An adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse. Minn. Stat. § 609.341 (15).
  • Position of authority” includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act, and in some cases includes a psychotherapist. Minn. Stat. § 609.341 (10).
  • There are also statutes criminalizing sexual acts perpetrated by therapists, clergy, correctional officers and special transportation service providers against the victim. Consent by the complainant is not a defense to these sexual acts.
    • Minn. Stat. § 609.345 and § 609.345.
Mississippi^

Not defined.

Not specified.

14 years old, unless (i) the person is in a position of authority in which case the age of consent is 18 years old or (ii) the person is older than the victim by 36 months or more, in which case the age of consent is 16. Miss. Code Ann. § 97-3-95.

No.

Yes, a person is guilty of sexual battery if he or she engages in sexual penetration with a physically helpless person, which includes a person that is unconscious. Miss. Code Ann. § 97-3-95.

Yes, a person is guilty of sexual battery if he or she engages in sexual penetration with a physically helpless person, which includes a person who for any reason is physically incapable of communicating an unwillingness to engage in an act. Miss. Code Ann. § 97-3-95.

Yes.

A person is guilty of sexual battery if he or she engages in sexual penetration with a child under 18 years of age if the person is in a position of trust or authority over the child, including without limitation, the child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

Miss. Code Ann. § 97-3-95.

Missouri^

Consent is not specifically defined.

However, Missouri law provides that rape in the first degree is committed if the offender has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim’s knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse. Mo. Rev. Stat. § 566.030.

No.

17 years old if the actor is 21 years old or older. Mo. Rev. Stat. § 566.034. Otherwise, 14 years old. Mo. Rev. Stat. § 566.032.

No.

Yes, a person commits the offense of rape in the first degree if he or she has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse. Mo. Ann. Stat. § 566.030.

Yes, a person commits the offense of rape in the first degree if he or she has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse. Mo. Ann. Stat. § 566.030.

Yes, it is not a defense to this section that the student consented to the sexual contact. A person commits the crime of sexual contact with a student if he or she has sexual contact with a student of a school and is:

  • a teacher;
  • a student teacher;
  • an employee of the school;
  • a volunteer of the school or of an organization working with the school on a project or program who is not a student at the school;
  • an elected or appointed official of the school district; or
  • a person employed by an entity that contracts with the school or school district to provide services.

Mo. Rev. Stat. § 566.086.

Montana^

Without consent” means:

  • the victim is compelled to submit by force against the victim or another; or
  • the victim is incapable of consent because the victim is:      
    • mentally disordered or incapacitated;    
    • physically helpless;    
    • overcome by deception, coercion, or surprise;    
    • less than 16 years old;    
    • incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation or parole and the perpetrator is an employee, contractor, or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;
    • receiving services from a youth care facility and the perpetrator:
      • (I) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and
      • (II) is an employee, contractor, or volunteer of the youth care facility; or
    • admitted to a mental health facility is admitted to a community-based facility or a residential facility or is receiving community-based services and the perpetrator: (I) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and (II) is an employee, contractor, or volunteer of the facility or community-based service.

Mont. Code Ann. § 45-5-501(1)(a).

No, but resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent. Mont. Code Ann. § 45-5-511(5).

16 years old. Mont. Code Ann. § 45-5-501(1)(a)(ii)(D).

No.

Yes. “Without consent” means the victim is incapable of consent because the victim is mentally disordered or incapacitated. Mont. Code Ann. § 45-5-501(1)(a)(ii)(A).

Not specifically. However, it may be possible to argue that because a victim was intoxicated, he or she was physically helpless or incapacaited. Please see above for further details.

Yes. “Without consent” means the victim is incapable of consent because the victim is:

  • incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation or parole and the perpetrator is an employee, contractor, or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;
  • receiving services from a youth care facility and the perpetrator:
    (I) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and (II) is an employee, contractor, or volunteer of the youth care facility; or
  • admitted to a mental health facility is admitted to a community-based facility or a residential facility or is receiving community-based services and the perpetrator: (I) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and (II) is an employee, contractor, or volunteer of the facility or community-based service.

Mont. Code Ann. § 45-5-501(1)(a)(E)-(G).

    • incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation or parole and the perpetrator is an employee, contractor, or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;
    • less than 14 years old and the offender is 3 or more years older than the victim;    
    • receiving services from a youth care facility and the perpetrator: (A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and (B) is an employee, contractor, or volunteer of the youth care facility; or
    • admitted to a mental health facility is admitted to a community-based facility or a residential facility or is receiving community-based services and the perpetrator: (A) has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and (B) is an employee, contractor, or volunteer of the facility or community-based service. Mont. Code Ann. § 45-5-502(5)(a).
Nebraska^

Consent itself is not defined, however “without consent” means:

  • (a)(i) The victim was compelled to submit due to the use of force or threat of force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the victim expressed a lack of consent through conduct, or (iv) the consent, if any was actually given, was the result of the actor's deception as to the identity of the actor or the nature or purpose of the act on the part of the actor;
  • (b) The victim need only resist, either verbally or physically, so as to make the victim's refusal to consent genuine and real and so as to reasonably make known to the actor the victim's refusal to consent; and
  • (c) A victim need not resist verbally or physically where it would be useless or futile to do so.”

Neb. Rev. Stat. §28-318.

No. Neb. Rev. Stat. §28-318.

16 years old. Any person who subjects another person to sexual penetration when the actor is nineteen years of age or older and the victim is at least twelve but less than sixteen years of age is guilty of sexual assault in the first degree. Neb. Rev. Stat. §28-319.

No.

Yes.

Any person who subjects another person to sexual penetration who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in the first degree. Neb. Rev. Stat. §28-319(1)(b).

Any person who subjects another person to sexual contact who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree. Neb. Rev. Stat. §28-320(1)(b)

Yes.

Any person who subjects another person to sexual penetration who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in the first degree. Neb. Rev. Stat. §28-319(1)(b).

Any person who subjects another person to sexual contact who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct . . . is guilty of sexual assault in either the second degree or third degree. Neb. Rev. Stat. §28-320(1)(b).

The evidence established that the victim was incapacitated by alcohol, and her assailant knew or should have known that she was mentally or physically incapable of resisting or appraising the nature of her conduct. State v. Freeman, 267 Neb. 737 (2004).

Not for married spouses. There is also no “spousal-exclusion” to sexual assault or rape charges.

State v. Willis, 223 Neb. 844 (1986).

Nevada^

Lack of consent results from:

Physical force is not necessary element in commission of crime of rape; statute requires only commission of act of sexual penetration against will of victim. McNair v. State, 825 P.2d 571, 108 Nev. 53 (1992).

No. Nev. Res. Stat. Ann. § 200.634 (2015).

14 years old. Nev. Res. Stat. Ann. § 200.364(6).

No.

Yes. A person is deemed incapable of consent if he or she is “mentally or physically incapable of resisting or understanding the nature of his or her conduct.” Nev. Res. Stat. Ann. § 200.366(1).

Although there is no specific mention of intoxication in the statute, a person is deemed incapable of consent if he or she is “mentally or physically incapable of resisting or understanding the nature of his or her conduct.” Nev. Res. Stat. Ann. § 200.366(1).

  • Incest:
    • Consent is not an element of the crime of incest for engaging in sexual intercourse with a family member. Res. Stat. Ann. § 201.180.
  • Marriage
  • Position of authority at school or other:
    • It is illegal for an employee or volunteer in a position of authority at a school and 21 years of age or older to engage in sexual conduct with a pupil that is under 18 years of age, if the pupil was enrolled at the school and had contact with the perpetrator in his or her duties as an employee or volunteer. Consent is not a defense. Rev. Stat. Ann. § 200.540(1),(2).
  • Position of authority at college or other:
    • It is illegal for an employee that is 21 years of age or older and in a position of authority at a college or university to engage in sexual conduct with a student that is under 16 or 17 years of age and enrolled at the college or university. Consent is not a defense. Rev. Stat. Ann. § 201.550.
New Hampshire^

Lack of consent can result from

  • (1) physical force;
  • (2) victim’s “helplessness”;
  • (3) coercion through physical force or threat of force;
  • (4) coercion through threat of retaliation;
  • (5) imprisonment, kidnapping or extortion;
  • (6) administration of any intoxicating substance which mentally incapacitates the victim;
  • (7) disability;
  • (8) concealment or surprise;
  • (9) filial affinity;
  • (10) authority over victim; or
  • (11) age. N.H. Rev. Stat. Ann. § 632-A:2.

Yes. A person commits aggravated felonious sexual assault if he or she engages in sexual penetration with a person that indicates by speech or conduct that there is not freely given consent to performance of the sexual act. N.H. Rev. Stat. Ann. § 632-A:2(m).

16 years old. N.H. Rev. Stat. Ann. § 632-A:3(II).

No.

Yes. Although not expressly mentioned in the statute, evidence that the victim was unconscious may support a conclusion that victim was physically unable to resist. State v. Grimes, 876 A.2d 753, 152 N.H. 310 (2005).

Yes. A person is deemed unable to consent if he or she is “mentally incapacitated” after being administered “any intoxicating substance,” without his or her knowledge or consent. N.H. Rev. Stat. Ann. § 632-A:2(f).

Yes.

  • A person commits aggravated felonious sexual assault if he or she (1) engages in sexual penetration with a victim to whom that person provides therapy or medical treatment, and (2) acts unethically or uses that position to coerce the victim. H. Rev. Stat. Ann. § 632-A:2(g).
  • A person commits aggravated felonious sexual assault if he or she engages in sexual penetration with a victim that is between 13 and 17 years old and the perpetrator is in a position of authority over the victim and uses that authority to coerce the victim. H. Rev. Stat. Ann. § 632-A:2(k).
  • A person commits aggravated felonious sexual assault if he or she engages in sexual penetration with a victim that is between 13 and 15 years old and the perpetrator is related by blood or a member of the same household. H. Rev. Stat. Ann. § 632-A:2(j).
  • A person commits aggravated felonious sexual assault if he or she engages in sexual penetration with a victim over whom the perpetrator is in a position of authority (1) at a correctional institution, secure psychiatric unit, or juvenile detention facility; or (2) via direct supervisory or disciplinary authority over the victim while the victim is on parole or probation or under juvenile probation; and the perpetrator uses this authority to coerce the victim. Consent is not a defense. H. Rev. Stat. Ann. § 632-A:2(n).
  • A person commits felonious sexual assault if he or she engages in sexual contact with a victim over whom the perpetrator is in a position of authority (1) at a correctional institution, secure psychiatric unit, or juvenile detention facility; or (2) via direct supervisory or disciplinary authority over the victim while the victim is on parole or probation or under juvenile probation; and the perpetrator uses this authority to coerce the victim. Consent is not a defense. H. Rev. Stat. Ann. § 632-A:3(IV).
  • Unless expressly stated, marriage not a defense. H. Rev. Stat. Ann. § 632-A:5.
New Jersey^

Lack of consent results from:

  • (1) physical force or coercion;
  • (2) use or threat of weapons;
  • (3) physical helplessness or incapacity;
  • (4) intellectual or mental incapacity;
  • (5) supervisory or disciplinary power over victim;
  • (6) the actor stands in loco parentis. N.J. Stat. Ann. § 2C:14-2.

In order to establish effective consent by the putative victim of a sexual assault, a defendant must demonstrate the presence of “affirmative and freely-given permission....” State v. Cuni, 733 A.2d 414, 424, 159 N.J. 584, 603 (1999).

16 years old. N.J. Stat. Ann. § 2C:14-2(c)(3).

No.

Yes, a person that is unconscious is physically helpless, and it is aggravated sexual assault to commit an act of sexual penetration with a person that the actor knew or should have known was physically helpless N.J. Stat. Ann. § 2C:14-2(a)(7); N.J. Stat. Ann. § 2C:14-1(g).

Yes, it is aggravated sexual assault to commit an act of sexual penetration with a person that the actor knew or should have known was mentally incapacitated, which includes when he or she is under the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent. N.J. Stat. Ann. § 2C:14-1(i).

Yes.

It is sexual assault to commit an act of sexual penetration with a person that is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status. N.J. Stat. Ann. § 2C:14-2(c)(2).

It is sexual assault to commit an act of sexual penetration with a person that is at least 16 years old but less than 18 years old, and

  • (1) the actor has supervisory or disciplinary power of any nature or in any capacity over the victim;
  • (2) the actor is related to the victim by blood or affinity to the third degree; or
  • (3) the actor is the victim’s guardian or otherwise stands in loco parentis. N.J. Stat. Ann. § 2C:14-2(c)(3).
New Mexico^

New Mexico does not provide a definition for consent, but it does provide a definition for “force” or “coercion”, which means:

  • (1) the use of physical force or physical violence;
  • (2) the use of threats to use physical violence or physical force against the victim or another when the victim believes that there is a present ability to execute the threats;
  • (3) the use of threats, including threats of physical punishment, kidnapping, extortion or retaliation directed against the victim or another when the victim believes that there is an ability to execute the threats;
  • (4) the perpetration of criminal sexual penetration or criminal sexual contact when the perpetrator knows or has reason to know that the victim is unconscious, asleep or otherwise physically helpless or suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act; or
  • (5) the perpetration of criminal sexual penetration or criminal sexual contact by a psychotherapist on his patient, with or without the patient's consent, during the course of psychotherapy or within a period of one year following the termination of psychotherapy. Physical or verbal resistance of the victim is not an element of force or coercion. New Mexico Statutes §30-9-10.

No.

17 years old. New Mexico Statutes §30-9-1.

No.

Yes, engaging in a sexual act when the perpetrator knows or has reason to know that the victim is unconscious or asleep is a criminal offense. New Mexico Statutes §30-9-10; §30-9-11.

Yes, engaging in a sexual act when the perpetrator knows or has reason to know that the victim is unconscious or otherwise physically helpless is a criminal offense. New Mexico Statutes §30-9-10; §30-9-11.

Yes, sexual activity between an adult and a minor is permitted if the couple is married. New Mexico Statutes §30-9-11.

It is also a crime if sexual penetration if perpetrated on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate. New Mexico Statutes §30-9-11(E)(2).

Additionally, it is a crime if sexual penetration is  perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school. New Mexico Statutes §30-9-11(G)(2).

New York^

Lack of consent results from:

  • (1) forcible compulsion;
  • (2) incapacity to consent;
  • (3) where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or
  • (4) where the offense charged is rape in the 3rd degree or criminal sexual act in the 3rd degree, in addition to forcible compulsion, circumstances under which, at the time of the sexual act, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances. New York Penal Law §130.05.

No.

17 years old. New York Penal Law §130.05.

No.

Yes, a physically helpless person, which includes a person that is unconscious, is incapable of giving consent. New York Penal Law §130.00; §130.05.

Yes, a mentally incapacitated person, which includes a person that is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, is incapable of giving consent. New York Penal Law §130.00; §130.05; §130.90.

Yes.

  • Marriage:
    • Marriage can be used as a defense when the victim's lack of consent is based solely on incapacity to consent because he/she was less than 17 years old. New York Penal Law §130.10.
  • Victim is under the care of the government:
    • A person is deemed incapable of consent when he or she is
      • (1) committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital, and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital;
      • (2) committed to the care and custody of a local correctional facility, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility;
      • (3) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care;
      • (4) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in §130.25, criminal sexual act in the third degree as defined in §130.40, aggravated sexual abuse in the fourth degree as defined in §130.65-a, or sexual abuse in the third degree as defined in §130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or
      • (5) a resident or inpatient of a residential facility operated, licensed or certified by
        • (i) the office of mental health;
        • (ii) the office for people with developmental disabilities; or
        • (iii) the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient. New York Penal Law §130.05.
North Carolina^

North Carolina does not define consent. The concept of “force” and “against the will of the other person” are used in the statute, but these terms are also not defined.

However, a threat of serious bodily harm which reasonably places fear in a person's mind is sufficient to demonstrate the use of force and the lack of consent. State v. Morrison, 94 N.C. App. 517, 522, 380 S.E.2d 608, 611 (1989)

Additionally, submission, including submission due to fear, fright, coercion or realization that in the particular situation resistance is futile is not consent. State v. Ricks, 34 N.C. App. 734, 735, 239 S.E.2d 602, 603 (1977).

No.

16 years old. North Carolina General Statutes Annotated §14-27.2.

No.

Yes, it is a crime to engage in sexual activity with a physically helpless person, which includes a person who is unconscious, when the person performing the act knows or should have reasonably known the other person was physically helpless. North Carolina General Statutes Annotated §14-27.1; §14-27.3; §14-27.5; §14-27.5A.

Yes, it is a crime to engage in sexual activity with a mentally incapacitated person when the person performing the act knows or should have reasonably known the other person was mentally incapacitated. North Carolina General Statutes Annotated §14-27.1; §14-27.3; §14-27.5; §14-27.5A.

Yes, a lawful marriage between a victim and defendant is a defense to certain sexual crimes regarding consent. North Carolina General Statutes Annotated §14-27.7; §14-27.7A.

Consent is not a defense to sexual crimes committed by a defendant who:

  • (1) has assumed the position of a parent in the home of a minor victim and engages in vaginal intercourse or a sexual act with a victim who is a minor residing in the home, or if a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age and engages in vaginal intercourse or a sexual act with such victim;
  • (2) is a teacher, school administrator, student teacher, school safety officer, or coach, at any age, or who is other school personnel, and who is at least four years older than the victim and engages in vaginal intercourse or a sexual act with a victim who is a student, at any time during or after the time the defendant and victim were present together in the same school, but before the victim ceases to be a student (except when defendant is married to the student); or
  • (3) a teacher, school administrator, student teacher, school safety officer, or coach, at any age, or who is other school personnel, and who is at least four years older than the victim and engages in vaginal intercourse or a sexual act with a victim who is a student, at any time during or after the time the defendant and victim were present together in the same school, but before the victim ceases to be a student (except when the defendant is lawfully married to the student). North Carolina General Statutes Annotated §14-27.7.
North Dakota^

North Dakota does not provide a definition for “consent” but it does provide a definition for “coercion,” which means:

No.

18 years old. State v. Klein, 200 N.W. 2d 288, 291 (N.D. 1972).

No.

Yes, a person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if that person knows that the victim is unaware that a sexual act is being committed upon him or her. N.D. Century Code Chapter 12.1-20-03(1)(c).

Yes, a person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if that person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct by administering or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means with intent to prevent resistance. N.D. Century Code Chapter 12.1-20-03(1)(b).

Yes, in the case of a married couple, but persons between sixteen and eighteen years old must have parental/guardian consent to be married. N.D. Century Code Chapter 12.1-20-03.

A person who engages in a sexual act with another person, or any person who causes another to engage in a sexual act is guilty of a felony if the other person is in official custody or detained in a hospital, prison, or other institution and the actor has supervisory or disciplinary authority over the other person. N.D. Century Code Ann. § 12.1-20-06.

Ohio^

Ohio does not provide a definition for consent. However, submission to sexual conduct as a result of fear may be sufficient in proving lack of consent as physical force or threat of physical force need not be shown to prove rape, merely the overcoming of the victim's will by fear or duress.  In re Adams (Ohio Ct.Cl. 1990) 61 Ohio Misc.2d 571, 580 N.E.2d 861.

No.

16 years old. Ohio Rev. Code Ann. § 2907.04.

Yes, no person shall engage in sexual conduct with another if the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age. Ohio Rev. Code Ann. § 2907.02

Yes, no person shall engage in sexual conduct with another if the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age. Ohio Rev. Code Ann. § 2907.02.

Additionally, no person shall engage in sexual conduct with another person who is not that person’s spouse if the offender knows that the other person submits because the other person is unaware that the act is being committed. Ohio Rev. Code Ann. § 2907.03.

Yes, no person shall engage in sexual conduct with another if for the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception. Ohio Rev. Code Ann. § 2907.02.

Yes.

  • Marriage:
    • A person may rape his or her spouse without that act being legally punishable, unless the spouses are separated. If spouses are living apart and separated, the act would be criminally punishable. Ohio Rev. Code Ann. § 2907.
  • Incest or in custody of the government:
    • It is a crime to engage in sexual conduct with another (who is not a spouse) if:
      • (1) the offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person;
      • (2) the other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person;
      • (3) the offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code, the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school;
      • (4) the other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution;
      • (5) the other person is a minor, and the offender is the other person's athletic or other type of coach, is the other person's instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person;
      • (6) the offender is a mental health professional, the other person is a mental health client or patient of the offender, and the offender induces the other person to submit by falsely representing to the other person that the sexual conduct is necessary for mental health treatment purposes;
      • (7) the other person is confined in a detention facility, and the offender is an employee of that detention facility;
      • (8) the other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation served by the cleric; or
      • (9) the other person is a minor, the offender is a peace officer, and the offender is more than two years older than the other person. Ohio Rev. Code Ann. § 2907.03.
Oklahoma^

Consent is not specifically defined. However, case law suggests that a lack of consent exists if, for any cause, the victim is not in a position to exercise any judgment about the matter. Ex Parte Childers, 310 P.2d 776 (Crim. Ct. App. 1957).

Additionally, rape is defined as an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator under any of the following circumstances:

  1. Where the victim is under sixteen (16) years of age;
  2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;
  3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;
  4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;
  5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;
  6. Where the victim submits to sexual intercourse under the belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief. In all cases of collusion between the accused and the spouse to accomplish such act, both the spouse and the accused, upon conviction, shall be deemed guilty of rape;
  7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim;
  8. Where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system; or
  9. Where the victim is nineteen (19) years of age or younger and is in the legal custody of a state agency, federal agency or tribal court and engages in sexual intercourse with a foster parent or foster parent applicant.

Rape is an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator if force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person. Okla. Stat. tit. 21, § 1111.

No.

16 years old. Okla. Stat. tit. 21, § 1111.

No

Yes. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator where the victim is at the time unconscious of the nature of the act and this fact is known to the accused. Okla. Stat. tit. 21, § 1111(5).

Yes. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit. Okla. Stat. tit. 21, § 1111(4).

Yes. Rape includes an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator:

  • where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim. Stat. tit. 21, § 1111(7).
  • where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system. Stat. tit. 21, § 1111(8).
  • where the victim is nineteen (19) years of age or younger and is in the legal custody of a state agency, federal agency or tribal court and engages in sexual intercourse with a foster parent or foster parent applicant.

Okla. Stat. tit. 21, § 1111(9).

Oregon^

A person is considered incapable of consenting to a sexual act if the person is:

  • (a) under 18 years of age;
  • (b) mentally defective;
  • (c) mentally incapacitated; or
  • (d) physically helpless. Or. Rev. Stat. § 163.315.

No.

18 years old. Or. Rev. Stat. § 163.315. Additionally:

  • It is rape in the first degree to have sexual intercourse with a victim under the age of 12 or if the victim is under the age of 16 and is the person’s sibling, child, or spouse’s child. Or. Rev. Stat. §§ 163.375(1)(b), (1)(c).
  • It is rape in the second degree to have sexual intercourse with a person under the age of 14. Or. Rev. Stat. § 163.365(1).
  • It is rape in the third degree to have sexual intercourse with another person under 16 years of age. Or. Rev. Stat. § 163.355(1).

No.

Yes. The definition for “physically helpless” includes that the person is unconscious. Or. Rev. Stat. § 163.205(5).

Physically helpless” means the person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Or. Rev. Stat. § 163.305.    

Not explicitly.

However, the definition for “physically helpless” includes that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Or. Rev. Stat. § 163.205(5).

Yes. A person who has sexual intercourse with another person commits the crime of rape in the first degree if the victim is under 16 years of age and is the person’s sibling, of the whole or half blood, the person’s child or the person’s spouse’s child. Or. Rev. Stat. § 163.375.

It is second degree sexual abuse if the offender is 21 years old or older, the victim is under 18 years of age, and at any time before the offense the offender was the victim’s “coach,” meaning they instruct or train an individual or members of a team in a sport. Or. Rev. Stat. § 163.426.

It is custodial misconduct in the first or second degree for an individual to engage in specified sexual acts with another person when the other person is in the custody of a law enforcement agency following arrest, confined or detained in a correctional facility, participating in an inmate or offender work crew or work release, or on probation, parole, post-prison supervision, or other supervised release if that individual is employed by the agency that arrested the person, operates the correctional facility, or supervises the work release. Or. Rev. Stat. § 163.452.

Pennsylvania^

A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:

  • (1) By forcible compulsion.
  • (2) By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.
  • (3) Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring.
  • (4) Where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance.
  • (5) Who suffers from a mental disability which renders the complainant incapable of consent. 18 Pa.C.S.A. § 3121.

Forcible compulsion” is designed as compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. The term includes, but is not limited to, compulsion resulting in another person’s death, whether the death occurred before, during or after sexual intercourse. 18 Pa.C.S.A. § 3101.

No.

16 years old. 18 Pa.C.S.A. § 3121

No.

Yes. It is rape to have sexual intercourse with a complainant who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring. 18 Pa.C.S.A. § 3121.

Yes. It is rape to have sexual intercourse where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. 18 Pa.C.S.A. § 3121.

Yes.

  • Age:
    • It is deviate sexual intercourse in the first degree if the victim is under 16 and the person is four or more years older than the complainant and the complainant and person are not married to one another. 18 Pa.C.S.A. § 3123.
  • Department of Corrections employee:
    • A person who is an employee or agent of the Department of Corrections or a county correctional authority, youth development center, youth forestry camp, State or county juvenile detention facility, other licensed residential facility serving children and youth, or mental health or mental retardation facility or institution commits a felony of the third degree when that person engages in sexual intercourse, deviate sexual intercourse or indecent contact with an inmate, detainee, patient or resident, and commits a felony of the third degree when that person engages in sexual intercourse, deviate sexual intercourse, or indecent contact with an inmate, detainee, patient or resident who is under 18 years of age. 18 Pa.C.S.A. § 3124.2.
  • School employee or volunteer:
    • A person who is a volunteer or an employee of a school or any other person who has direct contact with a student at a school commits a felony of the third degree when he engages in sexual intercourse, deviate sexual intercourse or indecent contact with a student of the school. 18 Pa.C.S.A. 3124.2(a.2).
  • Children center employee or volunteer:
    • A person who is a volunteer or an employee of a center for children commits a felony of the third degree when he engages in sexual intercourse, deviate sexual intercourse or indecent contact with a child who is receiving services at the center. 18 Pa.C.S.A. 3124.2(a.3).
  • Sports official in a sports program:
    • A person who serves as a sports official in a sports program of a nonprofit association or a for-profit association commits a felony of the third degree when that person engages in sexual intercourse, deviate sexual intercourse or indecent contact with a child under 18 years of age who is participating in a sports program of the nonprofit association or for-profit association. 18 Pa.C.S.A. § 3124.3(a).
  • Nonprofit volunteer or employee who has contact with youth:
    • A volunteer or an employee of a nonprofit association having direct contact with a child under 18 years of age who participates in a program or activity of the nonprofit association commits a felony of the third degree if the volunteer or employee engages in sexual intercourse, deviate sexual intercourse or indecent contact with that child. 18 Pa.C.S.A. § 3124.3(b).
Puerto Rico^
Rhode Island^

A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and if any of the following circumstances exist:

  • (1) The accused, not being the spouse, knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless.
  • (2) The accused uses force or coercion.
  • (3) The accused, through concealment or by the element of surprise, is able to overcome the victim.
  • (4) The accused engages in the medical treatment or examination of the victim for the purpose of sexual arousal, gratification, or stimulation. 18 R.I. Gen. Laws § 11-37-2.

Force or coercion” means when the accused does any of the following:

  • (i) Uses or threatens to use a weapon, or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon;
  • (ii) Overcomes the victim through the application of physical force or physical violence;
  • (iii) Coerces the victim to submit by threatening to use force or violence on the victim and the victim reasonably believes that the accused has the present ability to execute these threats;
  • (iv) Coerces the victim to submit by threatening to at some time in the future murder, inflict serious bodily injury upon or kidnap the victim or any other person and the victim reasonably believes that the accused has the ability to execute this threat. 18 R.I. Gen Laws § 11-37-1.

No.

16 years old. 18 R.I. Gen. Laws § 11-37-6.

No.

Yes. A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and if he accused, not being the spouse, knows or has reason to know that the victim is physically helpless, which includes unconsciousness. 18 R.I. Gen. Laws § 11-37-2.

Yes. A person is guilty of first degree sexual assault if he or she engages in sexual penetration with another person, and if the accused, not being the spouse, knows or has reason to know that the victim is mentally incapacitated, mentally disabled, or physically helpless. 18 R.I. Gen. Laws § 11-37-2.

Yes.

South Carolina^

A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:

  • (a) The actor uses aggravated force to accomplish sexual battery.
  • (b) The victim submits to sexual battery by the actor under circumstances where the victim is also the victim of forcible confinement, kidnapping, trafficking in persons, robbery, extortion, burglary, housebreaking, or any other similar offense or act.
  • (c) The actor causes the victim, without the victim's consent, to become mentally incapacitated or physically helpless by administering, distributing, dispensing, delivering, or causing to be administered, distributed, dispensed, or delivered a controlled substance, a controlled substance analogue, or any intoxicating substance. S.C. Code Ann. § 16-3-652.

Aggravated force” means that the actor uses physical force or physical violence of a high and aggravated nature to overcome the victim or includes the threat of the use of a deadly weapon. S.C. Code Ann. § 16-3-651.

  • (1) A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:
  • (a) The actor uses force or coercion to accomplish the sexual battery in the absence of aggravating circumstances.
  • (b) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery. S.C. Code Ann. § 16-3-6524.

No.

16 years old. S.C. Code Ann. § 16-3-655.

No.

Yes. A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness. S.C. Code Ann. § 16-3-654.

Yes. A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and the actor causes the victim, without the victim's consent, to become mentally incapacitated or physically helpless by administering, distributing, dispensing, delivering, or causing to be administered, distributed, dispensed, or delivered a controlled substance, a controlled substance analogue, or any intoxicating substance. S.C. Code Ann. § 16-3-652.

Yes. There are limitations on liability for a person if the victim is the legal spouse of the actor. See S.C. Code Ann. § 16-3-658.

Additionally person is guilty of criminal sexual conduct with a minor in the second degree if the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim. S.C. Code Ann. § 16-3-655.

A person affiliated with a public or private secondary school in an official capacity who engages in sexual battery with a student enrolled in the school who is sixteen or seventeen years of age, and aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a felony.

A person affiliated with a public or private secondary school in an official capacity that engages in sexual battery with a student enrolled in the school who is eighteen years of age or older, where aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a misdemeanor.

A person affiliated with a public or private secondary school in an official capacity and with direct supervisory authority over a student enrolled in the school who is eighteen years of age or older, and the person affiliated with the public or private secondary school in an official capacity engages in sexual battery with the student, and aggravated coercion or aggravated force is not used to accomplish the sexual battery, the person affiliated with the public or private secondary school in an official capacity is guilty of a felony.

  • Sexual battery” means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.”
  • Student” means a person who is enrolled in a school.
  • S.C. Code Ann. § 16-3-755.
South Dakota^

South Dakota does not provide a definition for consent, but it provides that no consent exists for an act of sexual penetration accomplished with any person where:

  • (1) the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or
  • (2) the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis. S.D. Code §22-22-1.

No.

16 years old. S.D. Code §22-22-7.

No.

South Dakota does not specifically reference consciousness; however, a person who is unconscious may be deemed incapable of consenting to sexual contact because of mental or physical incapacity. S.D. Code §22-22-7.2.

Yes, a person can be deemed incapable of consenting to sexual contact because of any intoxicating agent. S.D. Code §22-22-1.

Yes:

  • A person employed at any jail or juvenile correctional facility who knowingly engages in an act of sexual contact or sexual penetration with another person who is in detention and under the custodial, supervisory, or disciplinary authority of the person so engaging, is guilty of a felony. D. Code §22-22-7.6.
  • Any psychotherapist who knowingly engages in sexual contact or sexual penetration with a person who is not his or her spouse and who is a patient who is emotionally dependent on the psychotherapist at the time of contact is guilty of a felony. D. Code §§22-22-28 - 29.
  • The statute for sexual contact with a child under 16 does not apply where the victim is the actor’s spouse. S.D. Code §22-22-7.
Tennessee^

Tennessee does not provide a definition for consent, but it provides that rape is unlawful sexual penetration of a victim by the defendant, or of the defendant by a victim, where 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. Tenn. Code Ann. §39-13-503.

Sexual battery is unlawful sexual contact that is accomplished without the consent of the victim and where the defendant knows or has reason to know at the time of the contact that the victim did not consent. Tenn. Code Ann. §39-13-505.

No.

18 years old. Tenn. Code Ann. §39-13-528.

No.

Yes, unconsciousness falls within the definition of “physically helpless.” Tenn. Code Ann. §39-13-501.

Yes, the definition of mentally incapacitated encompasses the situation where 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. Tenn. Code Ann. §39-13-501.

Yes.

  • It is an offense for a defendant to engage in unlawful sexual contact with a minor when:
    • (1) the minor is at least 13 years old, but less than 18 years old;
    • (2) the defendant is at least 4 years older than the victim; and
    • (3) the defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the minor by virtue of the defendant’s legal, professional or occupational status and used the position of trust or power to accomplish the sexual contact; or
    • (4) the defendant had, at the time of the offense, parental or custodial authority over the minor and used the authority to accomplish the sexual contact. Code Ann. §§39-13-509; 39-13-532.
  • Sexual battery by an authority figure is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by the following:
    • (1) the victim was, at the time of the offense, 13 years old or older, but less than 18 years old; or
    • (2) the victim was, at the time of the offense, mentally defective, mentally incapacitated or physically helpless, regardless of age; and
    • (3)
      • (a) the defendant was at the time of the offense in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant’s legal, professional or occupational status and used the position of trust or power to accomplish the sexual contact; or
      • (b) the defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the sexual act. Code Ann. §39-13-527.

Note that Tennessee includes the “spouse of the defendant” in the definition of victim as used in the rape and sexual battery provisions of the code. Tenn. Code Ann. §39-13-501.

Texas^

Under Texas law, sexual assault “without the consent” of the other person arises when:

  • (1) the actor compels the other person to submit or participate by the use of physical force or violence;
  • (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
  • (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
  • (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
  • (5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
  • (6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
  • (7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
  • (8) the actor is a public servant who coerces the other person to submit or participate;
  • (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
  • (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
  • (11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code. Texas Code Ann. §22.011(b).

No.

17 years old. Texas Code Ann. §22.011(b).

No.

Yes, a sexual assault is considered to occur without the consent of the other person if the actor knows the other person is unconscious or if the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring. Texas Code Ann. §§22.011(b)(3) and (5).

Yes, a sexual assault is considered to occur without the consent of the other person if the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge. Texas Code Ann. §22.011(b)(6).

Yes, a sexual assault is considered to occur without the consent of the other person where:

  • (1) the actor is a public servant who coerces the other person to submit or participate;
  • (2) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
  • (3) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
  • (4) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code. Texas Code Ann. §§22.011(b)(8) – (11).

Note that it is an affirmative defense to the offense of sexual assault of a child, which is a person under 17 years old, if the actor was the spouse of the child at the time of the offense. Texas Code Ann. §22.011(e)(1).

Utah^

Under Utah law, sexual offenses “without consent” of the victim arise when:

  • (1) the victim expresses lack of consent through words or conduct;
  • (2) the actor overcomes the victim through the actual application of physical force or violence;
  • (3) the actor is able to overcome the victim through concealment or by the element of surprise;
  • (4)(a)(i) the actor coerces the victim to submit by threatening to retaliate in the immediate future against the victim or any other person, and the victim perceives at the time that the actor has the ability to execute this threat; or
  • (ii) the actor coerces the victim to submit by threatening to retaliate in the future against the victim or any other person, and the victim believes at the time that the actor has the ability to execute this threat;
  • (5) the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;
  • (6) the actor knows that as a result of mental disease or defect, or for any other reason the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;
  • (7) the actor knows that the victim submits or participates because the victim erroneously believes that the actor is the victim's spouse;
  • (8) the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge;
  • (9) the victim is younger than 14 years of age;
  • (10) the victim is younger than 18 years of age and at the time of the offense the actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim;
  • (11) the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate, under circumstances not amounting to the force or threat required under Subsection (2) or (4); or
  • (12) the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested. Utah Code Ann. §76-5-406.

No.

18 years old. Utah Code Ann. §76-5-406.

No.

Yes, a sexual offense is considered to occur without consent of the victim if the actor knows the victim is unconscious or unaware that the act is occurring. Utah Code Ann. §76-5-406(5).

Yes, a sexual offense is considered to occur without consent of the victim if the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge. Utah Code Ann. §76-5-406(8).

Yes, a sexual offense is considered to occur without consent of the victim:

  • If the victim is younger than 18 years old and at the time of the offense the actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim (which includes scout leaders, teachers or volunteers in schools, etc.); or
  • If the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested.

Utah Code Ann. §§76-5-406(10) and (12).

Note that a female under 18 years of age does not by marriage become capable of consenting to illicit sexual intercourse so as to bar prosecution of male participant in such act under carnal knowledge statute.  State v. Huntsman, 115 Utah 283, 1949.

Vermont^

Consent” means words or actions by a person indicating a voluntary agreement to engage in a sexual act. Vermont Stat. Ann. §13-3251(3).

Additionally, a person will be deemed to have acted without the consent of the other person where the actor:

  • (A) knows that the other person is mentally incapable of understanding the nature of the sexual act or lewd and lascivious conduct; or
  • (B) knows that the other person is not physically capable of resisting, or declining consent to, the sexual act or lewd and lascivious conduct; or
  • (C) knows that the other person is unaware that a sexual act or lewd and lascivious conduct is being committed; or
  • (D) knows that the other person is mentally incapable of resisting, or declining consent to, the sexual act or lewd and lascivious conduct, due to a mental condition or a psychiatric or developmental disability. Vermont Stat. Ann. §13-3254.

No.

16 years old. Vermont Stat. Ann. §13-3252.

No.

Yes, a person acts without consent of the victim where the actor knows that the other person is unaware that a sexual act or lewd and lascivious conduct is being committed. Vermont Stat. Ann. §13-3254.

Yes, if the intoxication renders the victim mentally incapable of understanding the nature of the sexual act or lewd and lascivious conduct and the actor knows of such victim’s mental incapacity. Vermont Stat. Ann. §13-3254.

Yes:

  • The victim is confined to a correctional facility or is being supervised by the department of corrections and the actor is a correctional employee, contractor or other person providing services to offenders on behalf of the department of corrections. Vermont Stat. Ann. §13-3257.
  • The actor engages in a sexual act with a minor and the actor is at least 48 months older than the minor and the actor is in a position of power, authority or supervision over the minor by virtue of the actor’s undertaking the responsibility, professionally or voluntarily, to provide for the health or welfare of minors, or guidance, leadership, instruction, or organized recreational activities for minors. Vermont Stat. Ann. §13-3258.
  • The victim is a child under the age of 16 and the victim is entrusted to the actor’s care by authority of law or is the actor’s child, grandchild, foster child, adopted child or step child; or the actor is at least 18 years old, resides in the victim’s household and services in a parental role with respect to the victim. Vermont Stat. Ann. §13-3252(e).

However, for married persons, consent can be a defense where a person engages in a sexual act with a child who is under 16 years old and the persons are married to each other and the sexual act is consensual. Vermont Stat. Ann. §13-3252.

Virgin Islands^

There is no consent in circumstances when:

  • (a) a person’s resistance is prevented by fear of immediate and great bodily harm (Williams v. Virgin Islands, No. CRIM. 2007-0008, 2011 WL 4072738 (V.I. Sept. 12, 2011)), or
  • (b) either force, intimidation, or abuse of a position of authority is used to accomplish a sexual act. Francis v. People, No. S.CT.CRIM. 2015-0002, 2015 WL 6460074 (V.I. Oct. 23, 2015).

No.

18 years old, unless legally married. 14 V.I.C. § 1700a.

No.

Yes, see above. 14 V.I.C. § 1708.

Yes, a person who engages in sexual contact with a person when the other person's ability to consent to or resist the contact has been substantially impaired by an intoxicating, narcotic or anesthetic agent, is guilty of unlawful sexual contact in the first degree. 14 V.I.C. § 1708.

Yes, there are special rules for persons in positions of authority over the victim and for persons residing in the same household of the victim.

  • The term “position of authority” includes, but is not exclusive to the following: an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, baby sitter, or substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control over a minor. 14 V.I.C. § 1700.
  • A person is guilty of aggravated rape in the first degree if they perpetrate an act of sexual intercourse or sodomy with a person who is under sixteen years of age residing in the same household as the perpetrator and the perpetrator's position of authority over the victim is used to accomplish the sexual act. 14 V.I.C. § 1700a.
  • A person is guilty of aggravated rape in the second degree if they perpetrate an act of sexual intercourse or sodomy with a person and the perpetrator's position of authority over the victim is used to accomplish the sexual act. 14 V.I.C. § 1700a.
Virginia^

Virginia defines rape and sexual battery as sexual intercourse or sexual abuse, respectively, of a complaining witness against her will. VA Code Ann. §§18.2-61; 18.2-67.4.

No.

18 years old. VA Code Ann. §18.2-371.

No.

Yes, a person who is unconscious is deemed physically helpless. A person is guilty of rape if the person has sexual intercourse with a complaining witness through the use of the complaining witness’s physical helplessness. VA Code Ann. §§18.2-61; 67.10(4).

Yes, “mental incapacity,” a statutory term that applies to rape and other sex crimes, is not limited to a permanent condition and may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand the nature or consequences of the sexual act; the cause of the victim's lack of ability to give consent is not dispositive. Molina v. Comm., 636 S.E.2d 470, 2006.

Yes.

  • An accused is guilty of sexual battery if he sexually abuses an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail, and the accused is an employee or contractual employee of, or a volunteer with, the state or local correctional facility or regional jail; is in a position of authority over the inmate; and knows that the inmate is under the jurisdiction of the state or local correctional facility or regional jail, or a probationer, parolee, or a pretrial defendant or post trial offender under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services or agency and the accused is an employee or contractual employee of, or a volunteer with, the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail; is in a position of authority over an offender; and knows that the offender is under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail. VA Code Ann. §18.2-67.4.
  • If any person providing services, paid or unpaid, to juveniles under the purview of the Juvenile and Domestic Relations District Court Law, or to juveniles who have been committed to the custody of the State Department of Juvenile Justice, carnally knows, without the use of force, any minor fifteen years of age or older, when such minor is confined or detained in jail, is detained in any facility mentioned in § 16.1-249, or has been committed to the custody of the Department of Juvenile Justice pursuant to § 16.1-278.8, knowing or having good reason to believe that (i) such minor is in such confinement or detention status, (ii) such minor is a ward of the Department of Juvenile Justice, or (iii) such minor is on probation, furlough, or leave from or has escaped or absconded from such confinement, detention, or custody, he shall be guilty of a felony. VA Code Ann. §18.2-64.1.

Note the rape statute applies “whether or not” a complaining witness is the spouse of the actor. VA Code Ann. §18.2-61.

Washington^

Consent requires that there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact at the time of the act. Wash. Rev. Code Ann. § 9A.44.010(7).

Yes. Wash. Rev. Code Ann. § 9A.44.010(7).

16 years old, however, there are exceptions for persons in positions of trust, such as school employees and foster parents. Wash. Rev. Code Ann. §§ 9A.44.093, 9A.44.096.

No.

Yes, a person who is unconscious is “physically helpless.” An actor is guilty of rape in the second degree if they have sexual intercourse with a person who is unconscious and physically helpless. Wash. Rev. Code Ann. § 9A.44.010.

Yes, a person that is under the influence of a substance “which prevents a person from understanding the nature or consequences of the act of sexual intercourse” is “mentally incapacitated” and incapable of giving consent. Wash. Rev. Code Ann. § 9A.44.010.

Yes, there are several special relationships between the victim and actor that would impact the victim’s ability to consent and therefore make it a crime to engage in sexual intercourse with a person. Examples of special relationships include:

  • (a) a person in a significant relationship with the victim and abuses a supervisory position within that relationship,
  • (b) a school employee,
  • (c) a foster parent,
  • (d) a person who undertakes the responsibility, professionally or voluntarily, to provide education, health, welfare, or organized recreational activities principally for minors, frail elders or vulnerable adults,
  • (e) a person who in the course of his or her employment supervises minors,
  • (f) long-term care facilities,
  • (g) home health, hospice, or home care agencies,
  • (h) a person providing transportation services within the course of his or her business, and
  • (i) physical and mental health care providers.  
  • Wash. Rev. Code Ann. §§ 9A.44.093, 9A.44.050, 9A.44.096, 9A.44.010.
West Virginia^

Lack of consent results from forcible compulsion, incapacity to consent, or if the victim does not expressly or impliedly acquiesce in the actor's conduct.

A person cannot consent to sexual intercourse if they are less than 16 years old, rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to that person without his or her consent, or suffer from a mental disease or defect which renders the person incapable of appraising the nature of his or her conduct. W. Va. Code Ann. § 61-8B-1(2)-(4).

No.

16 years old. W. Va. Code Ann. § 61-8B-5.

No.

Yes, a person who is unconscious is “physically helpless” and cannot consent to sexual intercourse or sexual intrusion W. Va. Code Ann. §§ 61-8B-1, 61-8B-4, 61-8B-7.

Yes, a person who is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to that person without his or her consent or as a result of any other act committed upon that person without his or her consent is deemed mentally incapacitated and cannot consent. W. Va. Code Ann. §§ 61-8B-1, 61-8B-5, 61-8B-8.

Yes, a person is deemed incapable of consent when such person is subject to confinement or supervision by a state or local government entity, when the actor is a person prohibited from having sexual intercourse, or causing sexual intrusion or sexual contact by a corrections or parole officer. W. Va. Code Ann. § 61-8B-2 and W. Va. Code Ann. § 61-8B-10.

Wisconsin^

Consent” means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact.

A person cannot consent to sexual contact or sexual intercourse in circumstances where:

  • (a) the person suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition;
  • (b) the defendant knows the victim is unconscious;
  • (c) the actor is an employee of an adult family home, a community-based residential facility, an inpatient healthcare facility, or a state treatment facility or program, and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program;
  • (d) the person is confined in a correctional institution and the actor is a correctional staff member. Wis. Stat. Ann. §§ 940.225(4).

Yes, consent must be “freely given.” Wis. Stat. Ann. §§ 940.225(4).

18 years old. Wis. Stat. Ann. § 948.01(1). Wis. Stat. Ann. § 948.05.

No.

Yes, a person who is unconscious is presumed incapable of consent. Wis. Stat. Ann. §§ 940.225(4).

Yes, a person who is under the influence of an intoxicant to a degree which renders that person incapable of freely giving consent, is incapable of giving consent to sexual contact or intercourse. Wis. Stat. Ann. §§ 940.225(4).

Yes, there are several special relationships between the victim and actor that would impact the victim’s ability to consent and therefore make it a crime to engage in sexual contact with a person.

Examples of special relationships include:

  • (a) a therapist-patient relationship;
  • (b) an employee of an adult family home, community-based residential facility, an in-patient health care facility, or a state treatment facility who has sexual conduct with a patient or resident of the facility;
  • (c) an employee of a child welfare agency, foster home, or shelter or a direct care or treatment services hospital or home health agency who has sexual conduct with a client at the facility;
  • (d) a correction officer or prison volunteer who has sexual contact or sex with an inmate (unless the person was sexually assaulted by the inmate);
  • (e) a probation or parole officer who has intercourse or sexual contact with the individual on parole or probation who’s supervised by him or her or a subordinate. Wis. Stat. Ann. §§ 940.22, 940.225.
Wyoming^

Consent is not defined by statute. However, case law suggests that in order for a person to consent to sexual intercourse, the person must be in a position to exercise independent judgment about the matter. Wilson v. State, 655 P.2d 1246 (Wyo. 1982).

No.

16 years old. Wyo. Stat. Ann. § 6-2-308.

No.

Yes, a person who is unconscious is deemed to be “physically helpless” and not capable of consenting. Wyo. Stat. Ann. § 6-2-302; Wyo. Stat. Ann. § 6-2-301.

Yes, if the intoxication makes the victim “physically helpless” or have a mental illness, mental deficiency or developmental disability that makes them incapable of appraising the nature of their conduct. Wyo. Stat. Ann. § 6-2-301; Wyo. Stat. Ann. § 6-2-302.

Yes, there are special rules for persons deemed to be in a “position of authority” over the victim that will impact the victim’s ability to consent.

Position of authority” means that position occupied by a parent, guardian, relative, household member, teacher, employer, custodian or any other person who, by reason of his position, is able to exercise significant influence over a person. Wyo. Stat. Ann. § 6-2-301.

Depending on the age difference between the victim and actor, an actor in a position of authority over a victim may be guilty of sexual abuse of a minor in varying degrees:

  • Sexual abuse of a minor in the first degree. Wyo. Stat. Ann. § 6-2-308.
    • An actor commits the crime of sexual abuse of a minor in the first degree if:
      • Being 18 years of age or older, the actor inflicts sexual intrusion on a victim who is less than 16 years of age.
  • Sexual abuse of a minor in the second degree. Wyo. Stat. Ann. § 6-2-315.
    • An actor commits the crime of sexual abuse of a minor in the second degree if:
      • Being 18 years of age or older, the actor engages in sexual contact with a victim who is less than 16 years of age.
  • Sexual abuse of a minor in the third degree. Wyo. Stat. Ann. § 6-2-316.
    • An actor commits the crime of sexual abuse of a minor in the third degree if:
      • Being 20 years of age or older, the actor engages in sexual intrusion with a victim who is either 16 or 17 years of age, and the victim is at least 4 years younger than the actor.
  • Sexual abuse of a minor in the fourth degree. Wyo. Stat. Ann. § 6-2-317.
    • An actor commits the crime of sexual abuse of a minor in the fourth degree if:
      • Being 20 years of age or older, the actor engages in sexual contact with a victim who is either 16 or 17 years of age, and
      • the victim is at least 4 years younger than the actor.



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