Consent Laws
Iowa

Last Updated: March 2020
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.

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 as 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 a sex crime if:

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

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. A person commits a sex crime if:

  • (1) the sex act is between persons who are not cohabitating as husband and wife and the other person is suffering from a defect or incapacity which precludes giving consent; or
  • (2) the 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 as 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 a sex crime if:

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

Does intoxication impact the victim’s ability to consent?

Yes. A person commits a sex crime 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. 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, a person does not commit sexual abuse in the third degree even where:

  • (1) the other person is suffering from a mental defect or incapacity which precludes giving consent; or
  • (2) the victim is 12 to 15 years old. 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 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 certain sex crimes. Consent is not a defense to statutory rape where prosecutrix is under the statutory age. State v. Brooks, 165 N.W. 194, 181 Iowa 874 (1917).

 

Also, it is not necessary to show physical resistance to prove lack of consent. 

Under the provisions of this chapter it shall not be 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
 

Is voluntary intoxication a defense to sex crimes?

It depends.  Although voluntary intoxication is not a defense to the general intent crime of sexual abuse, it may impact a defendant’s culpability for specific intent sex crimes like assault with the intent to commit sexual abuse, which requires proof that the defendant possessed the specific intent to sexually abuse.    









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