Consent Laws
Iowa

Last Updated: April 2023
Defining Consent Answer

How is consent defined?

Consent is not specifically defined. However, Iowa law defines “sexual abuse” as any sex act between persons where:

  • the sexual act is done by force or against the will of the other (if the consent or acquiescence of the victim is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other); or
  • the victim is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know the right and wrong of conduct in sexual matters; or
  • the other person is a child.

I.C.A. § 709.1.

The “against the will” element is deliberately broad and consciously designed to capture all circumstances when there is an actual failure of consent, including use of psychological force. See State v. Kelso-Christy, 911 N.W.2d 663, 667 (Iowa 2018).

It is not necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other. I.C.A. § 709.5.

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. I.C.A. § 709.4.

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

Yes. A person may engage in consensual sexual acts with a person that is 14 or 15 years old provided that the person is less than four years older than the minor. I.C.A. § 709.4.

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. Sexual abuse is defined to include any sex act between persons where the other person is suffering from a mental defect or incapacity which precludes giving consent or lacks the mental capacity to know the right and wrong of conducts in sexual matters. I.C.A. § 709.1.

In addition, a person commits sexual abuse in the third degree if:

  • (1) the sex act is between persons who are not cohabitating as husband and wife and the other person is suffering from a mental defect or incapacity which precludes giving consent; I.C.A. § 709.4(b)(1) or
  • (2) the sex act is performed while the other person is mentally incapacitated. I.C.A. § 709.4(d).

Mentally incapacitated” means that a person is temporarily incapable of appraising or controlling the person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance. I.C.A. §709.1A.

The key issue is whether the mental strength of the victim is so far below the normal that it precludes effective resistance. State v. Sullivan, 298 N.W.2d 267, 272 (Iowa 1980). Persons who are so mentally incompetent or incapacitated as to be unable to understand the nature and consequences of the sex act are incapable of giving consent. Id.

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

Yes. Sexual abuse is defined to include any sex act between persons when the other person is suffering from a mental defect or incapacity which precludes giving consent. I.C.A. § 709.1.

Sexual abuse in the third degree occurs when a sex act is performed while the other person is physically incapacitated or physically helpless. I.C.A. § 709.4.

Physically helpless” means that a person is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited. I.C.A. §709.1A.

Physically incapacitated” means that a person has a bodily impairment or handicap that substantially limits the person’s ability to resist or flee. I.C.A. §709.1A.

Does consciousness impact the victim’s ability to consent?

Yes.  Sexual abuse is defined to include any sex act between persons that is done against the will of the other, which includes an act that is done while the other person is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness. I.C.A. § 709.1.

In addition, a person commits sexual abuse in the third degree if:

  • (1) the sex act is between persons who are not cohabitating as husband and wife and the other person is suffering from a mental defect or incapacity which precludes giving consent; or
  • (2) the act is performed while the other person is mentally incapacitated, physically incapacitated, or physically helpless. I.C.A. § 709.4.

Physically helpless” means that a person is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited. I.C.A. §709.1A.

Does intoxication impact the victim’s ability to consent?

Yes.  See definitions above of mentally incapacitated, physically helpless, and physically incapacitated.

A person commits sexual abuse in the third degree if:

  • (1) the sex act is performed while the other person is under the influence of a controlled substance which prevents that person from consenting to the act and the person performing the act knows or reasonably should have known that the other person was under the influence of the controlled substance; or
  • (2) the sex act is performed while the other person is mentally incapacitated, physically incapacitated, or physically helpless. I.C.A. § 709.4.

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

Yes. If the sex act is between persons cohabitating as husband and wife at the time of the act and is done by force or against the will of the other person, it is sexual abuse in the third degree. I.C.A. § 709.4.

I.C.A. § 709.8 provides a marriage exception for “lascivious acts with a child.”

I.C.A. § 709.12 provides a marriage exception for “indecent contact with a child.”

It is unlawful for a person of 18 years of age who is in a position of authority over a minor to force, persuade, or coerce a minor, with or without consent, to disrobe or partially disrobe for the purpose of arousing or satisfying the sexual desires of either of them. I.C.A. § 709.14.

In addition, sexual exploitation by a counselor or therapist occurs when there is sexual conduct with:

  • (1) an emotionally dependent patient or client or emotionally dependent former patient or client; or
  • (2) a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist. I.C.A. § 709.15.

Sexual exploitation by a school employee or an adult providing training or instruction occurs when there is sexual conduct with a student. I.C.A. § 709.15.

Iowa also criminalizes sex acts by:

  • (1) any peace officer, or an officer, employee, contractor, vendor, volunteer, or agent of the department of corrections, or an officer, employee, or agent of a judicial district department of correctional services, with an individual committed to the custody of the department of corrections or a judicial district department of correctional services; or
  • (2) any peace officer, or an officer, employee, contractor, vendor, volunteer, or agent of a juvenile placement facility with a juvenile placed at such facility; or
  • (3) any peace officer, or an officer, employee, contractor, vendor, volunteer, or agent of a county with a prisoner incarcerated in a county jail. I.C.A. § 709.16.





Defenses Answer

Is consent a defense to sex crimes?

Yes, but not as to statutory rape where prosecutrix is under the statutory age. State v. Brooks, 165 N.W. 194, 181 Iowa 874 (1917).

Is voluntary intoxication a defense to sex crimes?

No, voluntary intoxication of the defendant is not a defense unless the sex crime involves specific intent.  Voluntary intoxication is a defense to specific intent crimes.  See State v. Guerrero Cordero, 861 N.W.2d 253, 258 (Iowa 2015), overruled on other grounds by Alcala v. Marriott Intern., Inc., 880 N.W.2d 707–08 (Iowa 2016) (“From the beginning, the [intoxication] defense has been applied in Iowa only to specific-intent crimes, not those of general intent” and “before intoxication could prevent a finding of specific intent, the offender not only had to be intoxicated, but so intoxicated that he or she could no longer reason and was incapable of forming a felonious intent.”).

 

Whether the victim was voluntarily intoxicated is not a defense.  A sex crime can occur if the victim is mentally incapacitated, physically helpless, or physically incapacitated or if the victim is under the influence of a controlled substance and the actor knows or reasonably should have known this.  I.C.A. § 709.4.   









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