Consent Laws
Tennessee

Last Updated: December 2017
Defining Consent Answer

How is consent defined?

Tennessee does not provide a definition for consent, but it provides that rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:

  • (1) Force or coercion is used to accomplish the act;
  • (2) The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent;
  • (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or
  • (4) The sexual penetration is accomplished by fraud. Tenn. Code Ann. §39-13-503.

 

Sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:

  • (1) Force or coercion is used to accomplish the act;
  • (2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;
  • (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or

(4) The sexual contact is accomplished by fraud. Tenn. Code Ann. §39-13-505.

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. Tenn. Code Ann. §39-13-528.

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

Yes.

  • Mitigated statutory rape is the unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim, when the victim is at least 15 years old but less than 18 years old and the defendant is at least 4 but not more than 5 years older than the victim.
  • Statutory rape is the unlawful sexual penetration of a victim by the defendant or of the defendant by the victim when: (1) the victim is at least 13 years old but less than 15 years old and the defendant is at least 4 years but less than 10 years older than the victim; or (2) the victim is at least 15 but less than 18 years old and the defendant is more than 5 but less than 10 years older than the victim.
  • Aggravated statutory rape is the unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim, when the victim is at least 13 years old but less than 18 years old and the defendant is at least 10 years older than the victim.
  • Rape of a child is the unlawful sexual penetration of a victim by the defendant, or of the defendant by a victim, if the victim is more than three years of age but less than 13 years of age.

Tenn. Code Ann. §§39-13-506; 39-13-522.

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, “mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person's consent, or due to any other act committed upon that person without the person's consent. Tenn. Code Ann. §39-13-501.

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

Yes, “physically helpless” means that a person is unconscious, asleep or for any other reason physically or verbally unable to communicate unwillingness to do an act. Tenn. Code Ann. §39-13-501.

Does consciousness impact the victim’s ability to consent?

Yes, unconsciousness falls within the definition of “physically helpless.” Tenn. Code Ann. §39-13-501.

Does intoxication impact the victim’s ability to consent?

Yes, the definition of mentally incapacitated encompasses the situation where a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person's consent, or due to any other act committed upon that person without the person's consent. Tenn. Code Ann. §39-13-501.

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

Yes.

  • It is an offense for a defendant to engage in unlawful sexual contact with a minor when the minor is less than 18 years old, the defendant is at least 4 years older than the victim, and either:
    • (A) the defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the minor by virtue of the defendant’s legal, professional or occupational status and used the position of trust or power to accomplish the sexual contact; or
    • (B) the defendant had, at the time of the offense, parental or custodial authority over the minor and used the authority to accomplish the sexual contact. Tenn. Code Ann. §§39-13-509; 39-13-532.
  • Sexual battery by an authority figure is unlawful sexual contact with a victim by the defendant or the defendant by a victim if the victim was, at the time of the offense, 13 years old or older, but less than 18 years old, or the victim was, at the time of the offense, mentally defective, mentally incapacitated or physically helpless, regardless of age, and either:
    • (A) the defendant was at the time of the offense in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant’s legal, professional or occupational status and used the position of trust or power to accomplish the sexual contact; or
    • (B) the defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the sexual contact. Tenn. Code Ann. §39-13-527.

Note that in Tennessee, the spouse of the defendant can be a “victim” under the rape and sexual battery provisions of the code. Tenn. Code Ann. §39-13-501.






Defenses Answer

Is consent a defense to sex crimes?

Generally, yes where consent is an element of the crime. Note that, for the act to constitute rape, it must be against the will of the female. “Against the will” means against or without her consent, express or implied. Lundy v. State, 521 S.W.2d 591 (1974).

Additionally, consent to intercourse obtained by force or fear due to threats or force is void and the offense is rape. Lundy v. State, 521 S.W.2d 591 (1974).

Is voluntary intoxication a defense to sex crimes?

Not specified









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