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Consent Laws
Mississippi

Last Updated: April 2023

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Defining Consent	Answer
How is consent defined?	Not defined.
Does the definition require "freely given consent" or "affirmative consent"?	Not specified.

Capacity to Consent	Answer
At what age is a person able to consent?	16 years old, unless (i) the other person is in a position of trust or authority over the child, in which case the age of consent is 18 years old or (ii) the other person is 36 or fewer months older than the victim, in which case the age of consent is 14. Miss. Code Ann. § 97-3-95, Miss. Code Ann. § 97-3-65.
Does difference in age between the victim and actor impact the victim's ability to consent?	Yes. A person is guilty of sexual battery if he or she engages in sexual penetration with: A child at least 14 but under 16 years of age, if the person is 36 or more months older than the child, or A child under 14 years of age, if the person is 24 or more months older than the child. Miss. Code Ann. § 97-3-95. The crime of statutory rape is committed when: Any person 17 years of age or older has sexual intercourse with a child who: Is at least 14 but under 16 years of age; and Is 36 months or more younger than the person; and Is not the person’s spouse; or A person of any age has sexual intercourse with a child who: Is under 14 years of age; and Is 24 or more months younger than the person. Miss. Code Ann. § 97-3-65.
Does elderly age impact the victim’s ability to consent?	No.
Does developmental disability and/or mental incapacity impact the victim’s ability to consent?	Yes. A person is guilty of sexual battery if he or she engages in sexual penetration with a mentally defective, mentally incapacitated or physically helpless person. Miss. Code Ann. § 97-3-95. “Mentally defective person” means one who suffers from a mental disease, defect or condition which renders that person temporarily or permanently incapable of knowing the nature and quality of his or her conduct. Miss. Code Ann. § 97-3-97(b). “Mentally incapacitated person” means one rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, or other substance administered to that person without his or her consent. Miss. Code Ann. § 97-3-97(c).
Does physical disability, incapacity or helplessness impact the victim’s ability to consent?	Yes, a person is guilty of sexual battery if he or she engages in sexual penetration with a physically helpless person. Miss. Code Ann. § 97-3-95. “Physically helpless person” means one who is unconscious or one who for any other reason is physically incapable of communicating an unwillingness to engage in an act. Miss. Code Ann. § 97-3-97(d).
Does consciousness impact the victim’s ability to consent?	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.
Does intoxication impact the victim’s ability to consent?	Yes, a person is guilty of sexual battery if he or she engages in sexual penetration is physically incapable of communicating an unwillingness to engage in an act, or (ii) a mentally incapacitated person, which includes a person who is rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, or other substance administered to that person without his or her consent. Miss. Code Ann. § 97-3-95.with (i) a physically helpless person, which includes a person who for any reason
Does the relationship between the victim and actor impact the victim’s ability to consent?	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(2); see also Miss. Code Ann. § 97-29-3 (making sex between teacher and a pupil under 18 punishable by fine to both parties and subjecting the teacher to imprisonment, with no mention of consent).

Defenses	Answer
Is consent a defense to sex crimes?	Consent is a defense to a charge of sexual battery committed with a person 14 years of age or over. Miss. Code Ann. § 97-3-95; Coates v. State, 495 So. 2d 464, 465 (Miss. 1986).
Is voluntary intoxication a defense to sex crimes?	No. In Mississippi, a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed. McDaniel v. State, 356 So.2d 1151, 1156 (Miss.1978).