Consent Laws
Minnesota

"Consent" means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act. Further:

• A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.
• Corroboration of the victim’s testimony is not required to show lack of consent.

Minn. Stat. § 609.341(4).

Yes, the definition requires words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.

With respect to first or second degree criminal sexual misconduct:

• If the younger party is under the age of 14, the older party must be no more than 36 months older.
• If the younger party is 14 or 15 years old, the other person must be (i) no more than 36 months older and (ii) in a current or recent position of authority over the younger party. 
• 16 years old, unless the actor is in a current or recent position of authority or has a significant relationship with the victim in which case the age of consent is 18 years old. Minn. Stat. § 609.342–345.

With respect to third or fourth degree criminal sexual misconduct:

• If the younger party is under the age of 14, the older party must be no more than 36 months older.
• 16 years old, unless the actor is in a current or recent position of authority or has a significant relationship with the victim in which case the age of consent is 18 years old.

“Current or recent position of authority” includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of or within 120 days immediately preceding the act. This includes a psychotherapist. Minn. Stat. § 609.341(10).

“Significant relationship”  means a situation in which the actor is: (1) the complainant’s parent, stepparent, or guardian; (2) any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; (3) an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse; or (4) an adult who is or was involved in a significant romantic or sexual relationship with the parent of a complainant. Minn. Stat. § 609.341(15).

Yes.    

The following acts constitute criminal sexual conduct in the first or second degree:

• Complainant is under 14 years of age and actor is more than 36 months older than the complainant (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
• Complainant is at least 14 but less than 16 years of age and actor is more than 36 months older than the complainant and in a current or recent position of authority over the complainant (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
• The actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration or contact (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
• The actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration or contact, and the actor or an accomplice used force or coercion to accomplish the act, the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).

Minn. Stat. § 609.342, Minn. Stat. § 609.343.

The following acts constitute criminal sexual conduct in the third or fourth degree:

• Complainant is under 14 years of age and the actor is no more than 36 months older than the complainant (neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense).
• Complainant is at least 14 but less than 16 years of age and the actor is more than 24 months older than the complainant.
• If the actor is no more than 60 months older than the complainant, it shall be an affirmative defense (which must be proved by a preponderance of the evidence) that the actor reasonably believes the complainant to be 16 years of age or older.
• In all other cases, mistake as to age shall not be a defense.
• Consent is not a defense. If the actor is no more than 36 months but more than 24 months older than the complainant, the actor may be sentenced to imprisonment for not more than five years or a fine of not more than $30,000, or both.
• Complainant is at least 16 but less than 18 years of age and the actor is more than 36 months older than the complainant and in a current or recent position of authority over the complainant (neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense).
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact (neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense).
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact, and the actor or accomplice used force or coercion to accomplish the act, the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time (neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense).

Minn. Stat. § 609.344, Minn. Stat. § 609.345.

The following acts constitute criminal sexual conduct in the fourth degree:

• Complainant is under 14 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant’s age or consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced.
• Complainant is at least 14 but less than 16 years of age and the actor is more than 36 months older than the complainant or in a current or recent position of authority over the complainant. Consent by the complainant to the act is not a defense. Mistake of age is not a defense unless actor is less than 60 months older. In any such case, if the actor is no more than 60 months older than the complainant, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor reasonably believes the complainant to be 16 years of age or older. In all other cases, mistake as to the complainant’s age shall not be a defense. 
• Complainant is at least 16 but less than 18 years of age and the actor is more than 36 months older than the complainant and in a current or recent position of authority over the complainant. Neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense.
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact. Neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense.
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact, and the actor or accomplice used force or coercion to accomplish the act, the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time. Neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense.

Minn. Stat. § 609.345.

No.

Yes. A person who is mentally impaired, mentally incapacitated or physically helpless cannot consent to a sexual act. Minn. Stat. § 609.341(4).

It constitutes criminal sexual conduct if the actor commits sexual penetration or contact and knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless. Minn. Stat. §§ 609.342, 609.343, 609.344, 609.345.

• “Mentally incapacitated” means (1) that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration, or (2) that person is under the influence of any substance or substances to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person's conduct. Minn. Stat. § 609.341.
• “Mentally impaired” means that a person, as a result of inadequately developed or impaired intelligence or a substantial psychiatric disorder of thought or mood, lacks the judgment to give a reasoned consent to sexual contact or to sexual penetration. Minn. Stat. § 609.341.
• “Physically helpless” means that a person is:

(a) asleep or not conscious;

(b) unable to withhold consent or to withdraw consent because of a physical condition; or

(c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor. Minn. Stat. § 609.341.

Yes. A person who is physically helpless cannot consent to a sexual act. Minn. Stat. § 609.341.

It constitutes criminal sexual conduct if the actor commits sexual penetration or contact and knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless. Minn. Stat. §§ 609.342, 609.343, 609.344, 609.345.

Yes. A person who is physically helpless (which includes unconsciousness) cannot consent to a sexual act. Minn. Stat. § 609.341.

It constitutes criminal sexual conduct if the actor commits sexual penetration or contact and knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless. Minn. Stat. §§ 609.342, 609.343, 609.344, 609.345.

Yes, if such intoxication results in the victim becoming mentally incapacitated or physically helpless. But, see case law regarding voluntary intoxication discussed below.

• State v. Berrios, 788 N.W.2d 135, App.2010 (finding that evidence was sufficient to support finding that complainant was physically helpless, thus supporting charge of third-degree criminal sexual conduct relating to sexual encounter between defendant and complainant, where complainant testified that she was severely intoxicated and that she was unconscious when defendant penetrated her, and gaps in complainant's memory were consistent with testimony that she was severely intoxicated).

Yes, a “significant relationship” or “current or recent position of authority” can affect the age of consent.

• The following acts constitute criminal sexual conduct in the first or second degree:
• Complainant is at least 14 but less than 16 years of age and actor is more than 36 months older than the complainant and in a current or recent position of authority over the complainant (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
• The actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration or contact (neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense).
• The actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration or contact, and the actor or an accomplice used force or coercion to accomplish the act, the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time.

Minn. Stat. § 609.342, Minn. Stat. § 609.343.

• The following acts constitute criminal sexual conduct in the third degree:
• Complainant is at least 16 but less than 18 years of age and the actor is more than 36 months older than the complainant and in a current or recent position of authority over the complainant (neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense).
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact (neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense).
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact, and the actor or accomplice used force or coercion to accomplish the act, or the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time (neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense).
• At the time of the act, the actor is in a prohibited occupational relationship with the complainant.

Minn. Stat. § 609.344.

A “prohibited occupational relationship” exists when the actor is in one of the following occupations and the act takes place under the specified circumstances:

1. the actor performed massage or other bodywork for hire, the sexual penetration or sexual contact occurred during or immediately before or after the actor performed or was hired to perform one of those services for the complainant, and the sexual penetration or sexual contact was nonconsensual; or
2. the actor and the complainant were in one of the following occupational relationships at the time of the act. Consent by the complainant is not a defense:
   1. the actor was a psychotherapist, the complainant was the actor’s patient, and the sexual penetration or sexual contact occurred during a psychotherapy session or during a period of time when the psychotherapist-patient relationship was ongoing;
   2. the actor was a psychotherapist and the complainant was the actor’s former patient who was emotionally dependent on the actor;
   3. the actor was or falsely impersonated a psychotherapist, the complainant was the actor’s patient or former patient, and the sexual penetration or sexual contact occurred by means of therapeutic deception;
   4. the actor was or falsely impersonated a provider of medical services to the complainant and the sexual penetration or sexual contact occurred by means of deception or false representation that the sexual penetration or sexual contact was for a bona fide medical purpose;
   5. the actor was or falsely impersonated a member of the clergy, the complainant was not married to the actor, the complainant met with the actor in private seeking or receiving religious or spiritual advice, aid, or comfort from the actor, and the sexual penetration or sexual contact occurred during the course of the meeting or during a period of time when the meetings were ongoing;
   6. the actor provided special transportation service to the complainant and the sexual penetration or sexual contact occurred during or immediately before or after the actor transported the complainant;
   7. the actor was or falsely impersonated a peace officer, as defined in section 626.84, the actor physically or constructively restrained the complainant or the complainant did not reasonably feel free to leave the actor’s presence, and the sexual penetration or sexual contact was not pursuant to a lawful search or lawful use of force;
   8. the actor was an employee, independent contractor, or volunteer of a state, county, city, or privately operated adult or juvenile correctional system, or secure treatment facility, or treatment facility providing services to clients civilly committed as mentally ill and dangerous, sexually dangerous persons, or sexual psychopathic personalities, including but not limited to jails, prisons, detention centers, or work release facilities, and the complainant was a resident of a facility or under supervision of the correctional system;
   9. the complainant was enrolled in a secondary school and:
      1. the actor was a licensed educator employed or contracted to provide service for the school at which the complainant was a student;
      2. the actor was age 18 or older and at least 48 months older than the complainant and was employed or contracted to provide service for the secondary school at which the complainant was a student; or
      3. the actor was age 18 or older and at least 48 months older than the complainant, and was a licensed educator employed or contracted to provide services for an elementary, middle, or secondary school;
   10. the actor was a caregiver, facility staff person, or person providing services in a facility, and the complainant was a vulnerable adult who was a resident, patient, or client of the facility who was impaired in judgment or capacity by mental or emotional dysfunction or undue influence; or
   11. the actor was a caregiver, facility staff person, or person providing services in a facility, and the complainant was a resident, patient, or client of the facility. This clause does not apply if a consensual sexual personal relationship existed prior to the caregiving relationship or if the actor was a personal care attendant.

Minn. Stat. § 609.341.

• The following acts constitute criminal sexual conduct in the fourth degree:
• Complainant is at least 14 but less than 16 years of age and the actor is more than 36 months older than the complainant or in a current or recent position of authority over the complainant. Consent by the complainant to the act is not a defense. Mistake of age is not a defense unless actor is less than 60 months older. In any such case, if the actor is no more than 60 months older than the complainant, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor reasonably believes the complainant to be 16 years of age or older. In all other cases, mistake as to the complainant’s age shall not be a defense. 
• Complainant is at least 16 but less than 18 years of age and the actor is more than 36 months older than the complainant and in a current or recent position of authority over the complainant. Neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense.
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact. Neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense.
• The actor has a significant relationship to the complainant and the complainant was at least 16 but less than 18 years of age at the time of the sexual penetration or contact, and the actor or accomplice used force or coercion to accomplish the act, the complainant suffered personal injury, or the sexual abuse involved multiple acts committed over an extended period of time. Neither mistake as to the complainant’s age nor consent to the act by the complainant shall be a defense.

Minn. Stat. § 609.345.

• There are also statutes criminalizing sexual acts perpetrated by therapists, clergy, medical services provider, correctional officers and special transportation service providers, and others against the victim. Consent by the complainant is not a defense to these sexual acts. These laws prohibit sexual acts perpetrated by an actor in a “prohibited occupational relationship.”
  • Minn. Stat. § 609.344 and § 609.345; see also Minn. Stat. § 609.341(24).

Consent can be a defense to sex crimes provided the complainant meets the statutory age to consent as described above. Minn. Stat. § 609.342–345.

Yes, voluntary intoxication of the perpetrator is a defense to specific intent sex crimes (i.e., where “knows or has reason to know” is a mental state requirement). Minn. Stat. § 609.3469. Where the crime is treated as a specific intent crime, voluntary intoxication may be a defense to negate the element of intent. State v. Hart, 477 N.W.2d 732, 736 (Minn. Ct. App. 1991).

Also note that “mentally incapacitated” means (1) that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration, or (2) that person is under the influence of any substance or substances to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person’s conduct. Minn. Stat. § 609.341 (emphasis added).