Consent Laws
Indiana

Consent is not specifically defined under the current law. 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; (3) the victim is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct cannot be given; or (4) the person disregarded the victim’s attempts to physically, verbally, or by other visible conduct refuse the person’s acts. 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).

No.

16 years old. IC §§ 35-42-4-9.

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 person is not more than 4 years older than the victim;
2. the relationship between the person and the victim was a dating relationship or an ongoing personal relationship;
3. the crime:

a. was not committed by a person who is at least 21 years of age;

b. was not committed by using or threatening the use of deadly forcee;

c. was not committed while armed with a deadly weapon;

d. did not result in serious bodily injury;

e. 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

f. was not committed by a person having a position of authority or substantial influence over the victim

4. the person has not committed another sex offense against any other person; and

5. the person is not promoting prostitution with respect to the victim. IC § 35-42-4-9.

“[C]apacity to consent presupposes an intelligence capable of understanding the act, its nature and possible consequences.”  Stafford v. State, 455 N.E.2d 402, 405 (Ind.  Ct. App. 1983); see also id. (victim was incapable of giving consent “by reason of her limited intelligence, mental age of six to seven years, and the consequential limitation on her judgment”).

The state does not have to prove “any knowledge on the part of a defendant. Rather, the intent element is expressed with respect to the defendant's purpose in arousing or satisfying sexual desires where such touching is not consented to or cannot be consented to.”  Johnson v. State, 31 N.e.3d 40, 2015 WL 1407768 (Ind. App. 2015) (unpublished opinion) (18 year old with IQ between 50-70 who could not cook, drive, be left alone overnight and was easily influenced held unable to consent)

No.

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.

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.

It also is a defense if the person is not more than 4 years older than the victim and the relationship between the person and the victim was a dating relationship or an ongoing personal relationship and the crime: was not committed by a person who is at least 21 years of age; was not committed by using or threatening the use of deadly force; was not committed while armed with a deadly weapon; did not result in serious bodily injury; 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; was not committed by a person having a position of authority or substantial influence over the victim; the person has not committed another sex offense against any other person; and the person is not promoting prostitution with respect to the victim. 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, child care worker, or coach for a child less than 18 years of age engages in sexual acts with the child;
• (2) a person who (i) has or had a professional relationship with a child less than 18 years of age whom the person knows to be 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 4 years older than a child who is less than 18 years of age, has contact with the child while acting within the scope of the law enforcement officer’s official duties with respect to the child, and uses or exerts the law enforcement officer’s professional relationship with the child to engage in sexual acts with the child.
• (4) a workplace supervisor (except one who had a dating relationship with the child before the child was employed at the place of employment) who is at least 4 years older than a child who is less than 18 years of age, supervises the child at the child’s place of employment and uses or exerts the workplace supervisor’s supervisory relationship to engage in sexual acts with the child.

IC § 35-42-4-7.

A person has a professional relationship with a child if the person has a license issued by the state or a political subdivision on the basis of the person’s training and experience that authorizes the person to carry out a particular occupation; or is employed in a position in which counseling, supervising, instructing, or recruiting children forms a significant part of the employment; AND the person has a relationship with a child that is based on the person’s employment or licensed status as described in subdivision (1). IC § 35-42-4-7(i).

See also Benner v. State, No. 18A-CR-2614, 2019 WL 3122467, at *3 (Ind. Ct. App. July 16, 2019) ([Section 35-42-4-7] clearly does not limit the criminal offense to a person who is currently in a professional relationship.)

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). 

No, voluntary intoxication is generally not a defense. IC § 35-41-2-5.