Consent Laws
Maryland
Last Updated: April 2023
| Defining Consent | Answer |
How is consent defined? |
Consent is not specifically defined. However, Maryland law provides that a person commits a sex crime if that person engages in “vaginal intercourse” or “sexual act” with another:
Evidence of physical resistance by the victim is not required. MD Code, Criminal Law, § 3-319.1 “Mentally incapacitated individual” means an individual who, because of the influence of a drug, narcotic, or intoxicating substance, or because of an act committed on the individual without the individual’s consent or awareness, is rendered substantially incapable of:
“Physically helpless individual” means an individual who:
“Substantially cognitively impaired individual” means an individual who suffers from an intellectual disability or a mental disorder, either of which temporarily or permanently renders the individual substantially incapable of:
Maryland law also provides that a person may not engage in sexual contact with another:
See also: In the case of a conscious and competent victim, mere passivity on the victim’s part will not establish the absence of consent. The law looks for express negation or implicit negation as evidenced by some degree of physical resistance or an explanation of why the will to resist was overcome by force or fear of harm. Travis v. State, 218 Md. App. 410, 428, 98 A.3d 281, 291 (2014). It is well settled that the terms “against the will” and “without the consent” are synonymous in the law of rape. State v. Rusk, 289 Md. 230, 241, 424 A.2d 720, 725 (1981). Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse. On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape. Battle v. State, 287 Md. 675, 684, 414 A.2d 1266, 1270 (1980). |
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. MD Code, Criminal Law, § 3-308. |
Does difference in age between the victim and actor impact the victim's ability to consent? |
Yes. A person that is under the age of 14 can engage in consensual sexual activity with a person that is less than 4 years older. Also, a person that is 14 or 15 years old can engage in consensual sexual activity with a person that is less than 4 years older. MD Code, Criminal Law, § 3-304(a)(3); 3-307(a)(3)-(4); 3-308(b)(2)-(3). |
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 may not engage in “vaginal intercourse,” a “sexual act,” or “sexual contact” with another if the victim is a substantially cognitively impaired or a mentally incapacitated individual, and the person performing the act knows or reasonably should know that the victim is a substantially cognitively impaired or mentally incapacitated individual. MD Code, Criminal Law, § 3-304; 3-307. See also Boyd v. State, 2015 WL 5945316 (Md. App 2015) (“[the] individual is mentally defective when he or she suffers from a mental disability that renders him or her substantially incapable of ‘appraising the nature of the individual's conduct’”). |
Does physical disability, incapacity or helplessness impact the victim’s ability to consent? |
Yes. A person may not engage in “vaginal intercourse,” a “sexual act,” or “sexual contact” with another if the victim is a physically helpless individual and the person performing the act knows or reasonably should know that the victim is a physically helpless individual. MD Code, Criminal Law, § 3-304; 3-307. |
Does consciousness impact the victim’s ability to consent? |
Yes. A person may not engage in “vaginal intercourse,” a “sexual act,” or “sexual contact” with another if the victim is a substantially cognitively impaired individual or mentally incapacitated individual and the person performing the act knows or reasonably should know that the victim is a substantially cognitively impaired or mentally incapacitated individual. MD Code, Criminal Law, § 3-304; 3-307. |
Does intoxication impact the victim’s ability to consent? |
Yes. A person may not engage in “vaginal intercourse,” a “sexual act,” or “sexual contact” with another if the victim is a mentally incapacitated individual, and the person performing the act knows or reasonably should know that the victim is a mentally incapacitated individual. MD Code, Criminal Law, § 3-304; 3-307 |
Does the relationship between the victim and actor impact the victim’s ability to consent? |
Yes. A person of authority may not engage in sexual intercourse, sexual contact, or a sexual act with a minor enrolled in the school or participating in the program where the person of authority works if the minor is at least 6 years younger than the person of authority. “Person of authority” includes persons over the age of 21 who work in schools and persons over the age of 22 who work at programs. “Program” means an individual, a business, a religious or faith-based institution, or an organization that provides, on a for-profit or nonprofit basis, instructional, coaching, recreational, spiritual, character-building, or supervisory services or activities for minors. MD Code, Criminal Law, § 3-308. A correctional employee (and other related employees such as an employee of a contractor providing goods and services to a correctional facility) may not engage in “sexual contact,” “vaginal intercourse,” or a “sexual act” with an incarcerated individual. MD Code, Criminal Law, § 3-314. A person may also not engage in “sexual contact,” “vaginal intercourse,” or a “sexual act” with an individual confined in a child care institution licensed by the Department of Juvenile Services, a detention center for juveniles, or a facility for juveniles. MD Code, Criminal Law, § 3-314. A court-ordered services provider may not engage in sexual contact, vaginal intercourse, or a sexual act with an individual ordered to obtain services while the order is in effect. MD Code, Criminal Law § 3-314. A law enforcement officer may not engage in sexual contact, vaginal intercourse, or a sexual act with a person:(i) who is a victim, witness, or suspect in an open investigation that the law enforcement officer is conducting, supervising, or assisting with if the law enforcement officer knew or should have known that the person is a victim, witness, or suspect in the investigation; (ii) requesting assistance from or responding to the law enforcement officer in the course of the law enforcement officer's official duties; or (iii) in the custody of the law enforcement officer, unless the law enforcement officer had a prior existing legal sexual relationship with the person; and did not act under the color or pretense of office or under color of official right when seeking consent for the sexual act. MD Code, Criminal Law § 3-314. |
| Defenses | Answer |
Is consent a defense to sex crimes? |
Yes, but not as to a charge of statutory rape. “We decline to deviate from the majority rule and uphold the legislature’s intent, as determined in Garnett, to make statutory rape a strict liability crime.” Owens v. State, 352 Md. 663, 688, 724 A.2d 43, 55 (1999). |
Is voluntary intoxication a defense to sex crimes? |
Yes, voluntary intoxication of the actor is a defense to sex crimes under certain circumstances. See Holt v. State, 438 A.2d 1386, 50 Md. App. 578 (1982) (failure of trial court to give requested instruction on voluntary intoxication mandated reversal of defendant’s convictions for specific intent crimes of third-degree sexual offense and attempted third-degree sexual offense). |