Consent Laws
Maryland

Last Updated: December 2017
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:

  • (1) by force, or the threat of force, without the consent of the other;
  • (2) if the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual;
  • (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim;
  • (4) if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old; or
  • (5) if the victim is 14 or 15 years old, and the person performing the act is at least 4 years older than the victim. MD Code, Criminal Law, § 3-303; § 3-304; § 3-307.

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:

  • (1) appraising the nature of the individual's conduct; or
  • (2) resisting vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

Physically helpless individual” means an individual who:

  • (1) is unconscious; or
  • (2)
    • (i) does not consent to vaginal intercourse, a sexual act, or sexual contact; and
    • (ii) is physically unable to resist, or communicate unwillingness to submit to, vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

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:

  • (1) appraising the nature of the individual’s conduct;
  • (2) resisting vaginal intercourse, a sexual act, or sexual contact; or
  • (3) communicating unwillingness to submit to vaginal intercourse, a sexual act, or sexual contact. MD Code, Criminal Law, § 3-301.

 

Maryland law also provides that a person may not engage in sexual contact with another:

  • (1) if the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a substantially cognitively individual, a mentally incapacitated individual, or a physically helpless individual; or
  • (2) if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim. MD Code, Criminal Law, § 3-307.

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 not more 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 not more than 4 years older. MD Code, Criminal Law, § 3-304; 3-307; 3-308.

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,” “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.

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

Yes. A person may not engage in “vaginal intercourse,” “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,” “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,” “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.

Age of consent law applies differently if the actor is a teacher or other school employee who is in a position of authority over the other person. Such persons may not engage in sexual activity with school students. 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 inmate. 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, a detention center for juveniles, or a facility for juveniles. MD Code, Criminal Law, § 3-314.

A person may not be prosecuted for rape in the first degree, rape in the second degree, sexual offense in the third degree, or sexual offense in the fourth degree against a victim who was the person’s legal spouse at the time of the alleged rape or sexual offense. MD Code, Criminal Law, § 3-318. There are exceptions for separation or use of force and limited divorce. MD Code, Criminal Law, § 3-318.






Defenses Answer

Is consent a defense to sex crimes?

Yes, but not as to a charge of statutory rape. “Maryland's statutory rape statute directly prohibits vaginal intercourse with children below age 14 without regard to the minor's ability to consent[.]” 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).









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