Consent Laws
Minnesota

Last Updated: December 2017
Defining Consent Answer

How is consent defined?

"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).

Does the definition require "freely given consent" or "affirmative consent"?

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.






Capacity to Consent Answer

At what age is a person able to consent?

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. If the younger party is under the age of 13, the older party must be no more than 36 months older. If the younger party is 13, 14 or 15 years old, the other person must be no more than 48 months older. Minn. Stat. § 609.342–345.

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 the act.

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; or (3) an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant's spouse.

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

Yes.    

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

  • Complainant is under 13 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 13 but less than 16 years of age and actor is more than 48 months older than the complainant and in a 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 13 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 13 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 120 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 48 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 48 months older than the complainant and in a 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 at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant. Consent is not a defense.  If the actor is no more than 120 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. Minn. Stat. § 609.345.

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 who is mentally impaired, mentally incapacitated or 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, Minn. Stat. § 609.343.

  • Mentally incapacitated” means 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. 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.

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

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, Minn. Stat. § 609.343.

 

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.

Does consciousness impact the victim’s ability to consent?

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, Minn. Stat. § 609.343.

Does intoxication impact the victim’s ability to consent?

Yes, if such intoxication results in the victim becoming mentally incapacitated or physically helpless. 

  • 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).

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

Yes, a “significant relationship” or “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 13 but less than 16 years of age and actor is more than 48 months older than the complainant and in a 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 or fourth degree:
    • Complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a 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).
    • Minn. Stat. § 609.344, Minn. Stat. § 609.345.
  • The following acts constitute criminal sexual conduct in the fourth degree:
    • Complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant. Consent is not a defense.  If the actor is no more than 120 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. 
    • Minn. Stat. § 609.345.
  • There are also statutes criminalizing sexual acts perpetrated by therapists, clergy, correctional officers and special transportation service providers against the victim. Consent by the complainant is not a defense to these sexual acts.
    • Minn. Stat. § 609.345 and § 609.345.





Defenses Answer

Is consent a defense to sex crimes?

Consent can be a defense to sex crimes provided the complainant meets the statutory age to consent as described above. Minn. Stat. § 609.342, Minn. Stat. § 609.343. Minn. Stat. § 609.344, Minn. Stat. § 609.345.

Consent is not a defense to sexual acts perpetrated by therapists, clergy, correctional officers and special transportation service providers against the victim. Minn. Stat. § 609.345 and § 609.345.

Is voluntary intoxication a defense to sex crimes?

Where the crime is treated as a specific intent crime, voluntary intoxication may be a defense to negate the element of intent (criminal sexual conduct is not a specific intent crime). State v. Hart, 477 N.W.2d 732, 736 (Minn. Ct. App. 1991).









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