Consent Laws
Kentucky

Last Updated: December 2017
Defining Consent Answer

How is consent defined?

Lack of consent” results from:

  • (1) forcible compulsion;
  • (2) incapacity to consent; or
  • (3) if the offence charged is sexual abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.

A person is also “deemed incapable of consent” when he or she is

  • (1) less than 16 years old;
  • (2) an individual with an intellectual disability or an individual that suffers from mental illness;
  • (3) mentally incapacitated;
  • (4) physically helpless; or
  • (5) under the care or custody of state or local agency pursuant to court order and the actor is employed or working on behalf of the state or local agency. KRS § 510.020.

Mental illness” means a diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) and any subsequent revision thereto, of the American Psychiatric Association. KRS § 510.010.

Individual with an intellectual disability” means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. KRS § 510.010.

Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his conduct as a result of the influence of an intoxicating substance administered to him without his consent or as a result of any other act committed upon him without his consent. KRS § 510.010.

Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to act.” KRS § 510.010.

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. KRS § 510.020.

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

Yes. A person is guilty of sexual abuse in the second degree when he or she is at least 18 years old but less than 21 years old and subjects another person who is less than 16 years old to sexual contact. However, it is a defense that the other person’s lack of consent was due solely to incapacity to consent by reason of being less than 16 years old, and the other person was at least 14 years old, and the actor was less than 5 years older than the other person. KRS § 510.120.

A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent. However, it is a defense that the other person’s lack of consent was due solely to incapacity to consent by reason of being less than 16 years old, the other person was at least 14 years old, and the actor was less than 18 years old. KRS § 510.130.

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 is deemed incapable of consent when he or she is an individual with an intellectual disability or an individual that suffers from a mental illness. KRS § 510.020.

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

Yes. A person is deemed incapable of consent when he or she is physically helpless. KRS § 510.020

Does consciousness impact the victim’s ability to consent?

Yes. A person is deemed incapable of consent when he or she is physically helpless, which includes unconsciousness. KRS § 510.020.

Does intoxication impact the victim’s ability to consent?

Yes. A person is deemed incapable of consent when he or she is mentally incapacitated, which includes intoxication, or if the intoxication causes the person to be physically helpless. KRS § 510.020.

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

Yes.

  • Marriage
    • A person who engages in sexual intercourse or deviate sexual intercourse with another person to whom the person is married, or subjects another person to whom the person is married to sexual contact, does not commit an offense under this chapter regardless of the person's age solely because the other person is less than sixteen (16) years old or an individual with an intellectual disability. KRS § 510.035.
  • A person is guilty of rape in the third degree if the person is:
    • (1) 21 years old or more, and he/she engages in sexual intercourse with another person less than 18 years old and for whom he or she provides a foster family home; or
    • (2) in a position of authority or position of special trust and he/she engages in sexual intercourse with a minor under 18 years old with whom he/she comes into contact as a result of that position;
    • (3) a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility, or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to sexual intercourse. KRS § 510.060.





Defenses Answer

Is consent a defense to sex crimes?

Yes, but not as to certain sex crimes. For example, consent is not a defense to a rape prosecution where victim was of such age that she could not legally do so. Hamilton v. Com., 57 S.W.2d 516, 247 Ky. 579 (1933).

Is voluntary intoxication a defense to sex crimes?

No. Voluntary intoxication is not a defense to the crimes of forcible rape and sodomy. Malone v. Com., 636 S.W.2d 647, 648 (Ky. 1982).









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