Consent Laws
Kentucky

Last Updated: March 2020
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) 16 or 17 years old and the actor is at least 10 years older than the victim at the time of the sexual act;
  • (3) an individual unable to communicate consent or lack of consent, or unable to understand the nature of the act or its consequences, due to an intellectual disability or a mental illness;
  • (4) mentally incapacitated;
  • (5) physically helpless; or
  • (6) 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, except where the persons are lawfully married to each other and there is no court order in effect prohibiting contact between the parties. 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?

18 years old. 

A person is deemed incapable of consent when he or she is:

  • less than sixteen (16) years old; or
  • sixteen (16) or seventeen (17) years old and the actor at least ten (10) years older than victim at the time of the sexual act.

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 §§ 510.010; 510.020; 510.060

See also Hillebrandt v. Commonwealth, 2013 WL 6212240 (Ky.App. 2013) (“In determining whether a woman is incapable of granting consent because she is mentally defective, the sole question is whether she is capable of appraising the nature of the sexual act being performed” prior to the time that the sexual act occurred)

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 §§ 510.010; 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 §§ 510.010; 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 §§ 510.010; 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 sexual abuse in the first degree if he or she is a person in a position of authority or position of special trust, as defined in KRS 532.045, he or she, regardless of his or her age, subjects a minor who is less than eighteen (18) years old, with whom he or she comes into contact as a result of that position, to sexual contact or engages in masturbation in the presence of the minor and knows or has reason to know the minor is present or engages in masturbation while using the Internet, telephone, or other electronic communication device while communicating with a minor who the person knows is less than sixteen (16) years old, and the minor can see or hear the person masturbate. KRS § 510.110
  • A person is guilty of sexual abuse in the second degree if the person is a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility as defined in KRS 520.010, 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 is at least eighteen (18) years old and 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 contact.  KRS § 510.120
  • 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.

See also Stinson v. Com., 396 S.W.3d 900, 906 (Ky. 2013) (“a minor cannot consent to sexual contact from a person who is in a position of special trust or authority. Such behavior is sexual abuse in the first degree, and does not require an additional showing of lack of consent.”)






Defenses Answer

Is consent a defense to sex crimes?

Yes, see Mayo v. Com., 322 S.W.3d 41, 48 n.5 (Ky. 2010) (Kentucky Revised Statutes (KRS) 510.020(1) provides that lack of consent by the victim is an element of all the offenses contained in KRS Chapter 510, which includes rape and sodomy), 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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