Consent Laws
Indiana

Last Updated: December 2017
Defining Consent Answer

How is consent defined?

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.

Capacity to consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. Stafford v. State, 455 N.E.2d 402, 406 (Ind. Ct. App. 1983).

Consent of a woman from fear of personal violence is void. Parrett v. State, 200 Ind. 7, 159 N.E. 755, 760 (1928).

Does the definition require "freely given consent" or "affirmative consent"?

No.






Capacity to Consent Answer

At what age is a person able to consent?

16 years old. IC §§ 35-42-4-9.

Does difference in age between the victim and actor impact the victim's ability to consent?

Yes. It is defense to sexual misconduct with a minor (where the victim is at least 14 years of age but less than 16 years of age) if all the following apply:

  1. the crime:
  2. the relationship between the person and the victim was a dating relationship or an ongoing personal relationship;
  3. the person is not more than 4 years older than the victim;
    1. was not committed by a person who is at least 21 years of age;
    2. was not committed by using or threatening the use of deadly force;
    3. was not committed while armed with a deadly weapon;
    4. did not result in serious bodily injury;
    5. was not 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; and
    6. was not committed by a person having a position of authority or substantial influence over the victim; and
  4. the person has not committed another sex offense against any other person. IC §§ 35-42-4-9.

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 commits a sex crime if the victim is so mentally disabled or deficient that consent to sexual intercourse or sexual conduct cannot be given. IC §§ 35-42-4-1; 35-42-4-8.

Does physical disability, incapacity or helplessness impact the victim’s ability to consent?

No.

Does consciousness impact the victim’s ability to consent?

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.

Does intoxication impact the victim’s ability to consent?

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.

Does the relationship between the victim and actor impact the victim’s ability to consent?

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; or
  • (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.






Defenses Answer

Is consent a defense to sex crimes?

Yes, but consent is not an element to be proved in child molesting cases or defense to child molestation charge. Thompson v. State, 555 N.E.2d 1301 (Ind. Ct. App. 1990).

Is voluntary intoxication a defense to sex crimes?

No, voluntary intoxication is generally not a defense.









DNA evidence can increase likelihood of holding a perpetrator accountable.

Read More

Sexual violence has fallen by half in the last 20 years.

More Stats

The National Sexual Assault Hotline will always be free — with your help.

Donate Now