Consent Laws
Ohio

Ohio does not specifically define “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, 575, 580 N.E.2d 861, 863.

No.

At age 16 a person can consent. No person who is eighteen years or older shall engage in sexual conduct with another person when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard. Ohio Rev. Code Ann. § 2907.04(A). However, there is an exception for married persons between the ages of thirteen and sixteen and for sexual conduct where the offender is less than reckless regarding their knowledge of the minor’s age. Id.

Ohio imposes strict liability with respect to the victim’s age if:

1. A person engages in sexual conduct or sexual contact with another who is less than thirteen years of age, whether or not the offender knows the age of the other person. Ohio Rev. Code Ann. § 2907.02(A)(1)(b) (crime of rape applies for sexual conduct); 2907.05(A)(4) (crime of gross sexual imposition for sexual contact).
2. A person knowingly touches the genitalia of another, when the touching is not through clothing, the other person is less than twelve years of age, whether or not the offender knows the age of that person, and the touching is done with an intent to abuse, humiliate, degrade, or arouse or gratify the sexual desire of any person. Ohio Rev. Code Ann. § 2907.05(B).

But see In re D.B., 2011-Ohio-2671, 129 Ohio St. 3d 104, 950 N.E.2d 528 (statutory rape provision, Ohio Rev. Code Ann. § 2907.02(A)(1)(b), as applied to child under the age of 13 who engages in sexual conduct with another child under the age of 13, is unconstitutionally vague).

No, it only impacts the severity of the punishment. Ohio Rev. Code Ann. § 2907.04(B)(1)–(3). The exceptions are if the minor is age thirteen to sixteen and if the offender is less than reckless regarding their knowledge of the minor’s age. Ohio Rev. Code Ann. § 2907.04(A).

Yes, no person shall engage in sexual conduct or sexual contact 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(A)(1)(c) (crime of rape applies for sexual conduct); 2907.05(A)(5) (crime of gross sexual imposition for sexual contact).

Yes, no person shall engage in sexual conduct or sexual contact 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(A)(1)(c) (crime of rape applies for sexual conduct); 2907.05(A)(5) (crime of gross sexual imposition for sexual contact).

Yes, no person shall engage in sexual conduct or sexual contact 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(A)(1)(c) (crime of rape applies for sexual conduct); 2907.05(A)(5) (crime of gross sexual imposition for sexual contact).

Yes, no person shall engage in sexual conduct or sexual contact 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(A)(1)(c) (crime of rape applies for sexual conduct); 2907.05(A)(5) (crime of gross sexual imposition for sexual contact).

Additionally, no person shall engage in sexual conduct with another person if the offender knows that the other person submits because the other person is unaware that the act is being committed. § 2907.03(A)(3).

Yes.

If the intoxication is involuntary:

An offender commits rape if they 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. § 2907.02(A)(1)(a). 

An offender commits gross sexual imposition if they engage in sexual contact with another; cause another  to have sexual contact with the offender; or cause two or more other persons to have sexual contact, when for the purpose of preventing resistance, the offender substantially impairs the judgment or control of the other person or of one of the other persons by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception. § 2907.05(A)(2).

If the intoxication is voluntary:

An offender commits sexual imposition if they engage in sexual contact with another; cause another  to have sexual contact with the offender; or cause two or more other persons to have sexual contact, when the offender:

• knows that the other person’s, or one of the other person’s, ability to appraise the nature of or control the offender’s or touching person’s conduct is substantially impaired, or
• knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact.
• 2907.06(A)(2-3).

An offender commits gross sexual imposition if they engage in sexual contact with another; cause another  to have sexual contact with the offender; or cause two or more other persons to have sexual contact, when the offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person’s consent for the purpose of any kind of medical or dental examination, treatment, or surgery. § 2907.05(A)(3).

Additionally, an offender commits a sexual battery if they engage in sexual conduct with another when the offender:

• knows that the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired; or
• knows that the other person submits because the other person is unaware that the act is being committed.
• 2907.03(A)(2)-(3).

“[W]hen reviewing substantial impairment due to voluntary intoxication, there can be a fine, fuzzy, and subjective line between intoxication and impairment. Every alcohol consumption does not lead to a substantial impairment. Additionally, the waters become even murkier when reviewing whether the defendant knew, or should have known, that someone was impaired rather than merely intoxicated.” State v. Hatten, 2010-Ohio-499, ¶ 23, 186 Ohio App. 3d 286, 295, 927 N.E.2d 632, 638–39.

Yes.

• Incest, in custody of the government, or in a position of authority:
• It is a crime (sexual battery) to engage in sexual conduct with another  if:
• 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;
• 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;
• 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;
• 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;
• 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;
• 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;
• the other person is confined in a detention facility, and the offender is an employee of that detention facility;
• 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
• 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(A)(5)–(13); but see State v. Mole, 2016-Ohio-5124, 149 Ohio St. 3d 215, 74 N.E.3d 368 (statute prohibiting sexual conduct between a minor and a peace officer who is more than two years older than the minor was not rationally related to a legitimate governmental purpose, and thus statute violated equal protection).
  
  
• An offender commits sexual imposition if they engage in sexual contact with another; cause another  to have sexual contact with the offender; or cause two or more other persons to have sexual contact, when the offender is a mental health professional, the other person or one of the other persons is a mental health client or patient of the offender, and the offender induces the other person who is the client or patient to submit by falsely representing to the other person who is the client or patient that the sexual contact is necessary for mental health treatment purposes. Ohio Rev. Code Ann. § 2907.06(A)(5).

Consent is not specifically identified in the statutes as a defense. However, case law indicates that consent in a prosecution for rape is a complete defense. State v. Driscoll, 106 Ohio St. 33, 40, 138 N.E. 376, 378 (1922) (“Consent or nonresistance in a prosecution for rape is a complete defense, just as insanity, or an alibi, would be; and, furthermore, consent would be a complete defense to the included offenses of assault and battery and assault.”).  NOTE: State v. Driscoll was superceded by rule on other grounds as stated in State v. Morgan, Ohio, September 13, 2017.  The superseding rule pertained to criminal rule of procedure 52(B) and had nothing to do with the Driscoll court's statement regarding consent.

Baldwin’s Oh. Prac. Crim. L. § 91:11 (3d ed.) (2017) offers a clearer understanding of the role of consent as a defense to sex crimes in Ohio:

“Generally, consent is a defense only when ‘lack of consent’ is an element of the crime. For example, most types of rapes . . . require, in effect, lack of consent . . . . In these circumstances, consent is not an affirmative defense. The prosecution, for example, must establish lack of consent, beyond a reasonable doubt, in a rape case.

If consent is a ‘defense’ to a crime, it must be (1) freely given (without compulsion or duress); (2) by a person legally capable of consenting; and (3) not based on fraud.”

As to the defendant, voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense. Voluntary intoxication does not relieve a person of a duty to act if failure to act constitutes a criminal offense. Evidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged. Ohio Rev. Code Ann. § 2901.21(E).