Consent Laws
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, or because of a victim’s age. Arkansas Code §§ 5-14-103; 5-14-125.

• “Forcible compulsion” means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Arkansas Code § 5-14-101(3). 
• “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.
• Note: a determination that a person is mentally defective shall not be based solely on the person’s IQ. Arkansas Code § 5-14-101(5).
• “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:
• administered to the person without the person’s consent; or
• that renders the person unaware a sexual act is occurring. Arkansas Code § 5-14-101(6).
• “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. Arkansas Code § 5-14-101(8).
• A nursing home patient was unable to communicate lack of consent and, thus, was “physically helpless” within meaning of statute for attempted rape purposes; victim was blind, unable to speak, and confined to bed or wheelchair, and victim could only grunt, raise her hand, and shake her head from side to side to communicate. Dabney v. State, 930 S.W.2d 360, 326 Ark. 382 (1996). 
• Note: When criminality of conduct depends on a victim’s being incapable of consent because he or she is mentally defective or mentally incapacitated, it is an affirmative defense that the actor reasonably believed that the victim was capable of consent. Arkansas Code § 5-14-102(e).

The existence of forcible compulsion in a rape case does not depend on the quantum of force that is applied but rather on whether the act is consummated against the victim’s will. Hillman v. State, 569 S.W.3d 372 (Arkansas 2019).

No.

Generally, 16 years old, subject to various close-in-age exemptions (see below). Arkansas Code § 5-14-127(a)(1).

Yes, the difference in age between the victim and actor in a prosecution of certain sexual offenses impacts whether the victim is capable of consenting to sexual activity:

• Non-forcible Rape: A person under the age of fourteen (14) is incapable of consenting to engage in sexual intercourse or deviate sexual activity with a person more than three (3) years older than the victim. Arkansas Code § 5-14-103(a)(3).
• Sexual Assault (2nd Degree):
• A person under the age of fourteen (14) is incapable of consenting to engage in sexual contact with a person eighteen (18) years of age or older. Arkansas Code § 5-14-125(a)(3).
• A person under twelve (12) years old is incapable of consenting to engage in sexual contact with a minor who is older by more than three (3) years. Arkansas Code § 5-14-125(a)(5)(B)(i).
• A person between the ages of twelve (12) and thirteen (13) years old is incapable of consenting to engage in sexual contact with a minor who is older by more than four (4) years. Arkansas Code § 5-14-125(a)(5)(B)(ii).
• Sexual Assault (3rd Degree)
• A person under fourteen (14) years old is incapable of consenting to engage in sexual intercourse or deviate sexual activity with a minor who is older by more than three (3) years. Arkansas Code § 5-14-126(a)(2).
• Sexual Assault (4th Degree)
• A person under the age of sixteen (16) is incapable of consenting to engage in sexual intercourse, deviate sexual activity or sexual contact with a person twenty (20) years of age or older who is not the person’s spouse. Arkansas Code §§ 5-14-127(a)(1).

However, certain age differences can be asserted by the actor as an affirmative defense that may negate any criminal liability of the actor in a prosecution for certain non-forcible rape or sexual assault in the first through third degree.  Arkansas Code §§ 5-14-103(a)(3)(B) & (a)(4)(B), 5-14-124(c), 5-14-125(a)(5)(B), 5-14-126(a)(2)(B).    

In certain cases, it is also an affirmative defense that the actor reasonably believed the child to be of the critical age or above. Arkansas Code § 5-14-102.

No.

Yes, a person can be incapable of consent because he or she is mentally defective or mentally incapacitated. Arkansas Code §§ 5-14-103(a)(2); 5-14-125(a)(2).

Yes, a person can be incapable of consent because he or she is physically helpless. Arkansas Code §§ 5-14-103(a)(2); 5-14-125(a)(2).

Yes, a person that is unconscious is deemed “physically helpless” and unable to give consent. Arkansas Code § 5-14-101(8)(A).

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(6).

Yes, in a prosecution for non-forcible rape and sexual assault in the first through fourth degree, the victim cannot consent if certain relationships, listed below, exist between the victim and offender. These include:

• a minor’s guardian;
• a member of minor-victim’s family (including by adoption);
• an employee of the correctional facility where a victim is in custody;
• a mandated reporter and is in as position of trust or authority over the minor;
• a member of the clergy and is in a position of trust or authority over the victim and uses the position of trust or authority to engage in sexual intercourse or deviate sexual activity; or
• a teacher, principal, athletic coach, counselor or a caretaker.

Arkansas Code §§ 5-14-103; 5-14-124; 5-14-125; 5-14-126; 5-14-127.

Criminal liability is not typically imposed where the actor commits any degree of sexual assault on his or her spouse (other than with respect to forcible compulsion). Arkansas Code §§ 5-14-124(a)(1); 5-14-125; 5-14-126(a); 5-14-127(a).

Yes, consent is a defense to rape if the victim is capable of consent and to sexual assault in the second degree. See Arkansas Code §§ 5-14-103; 5-14-125(a)(1)-(2).

No. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).