Consent Laws
Texas

Last Updated: December 2017
Defining Consent Answer

How is consent defined?

Under Texas law, sexual assault “without the consent” of the other person arises when:

  • (1) the actor compels the other person to submit or participate by the use of physical force or violence;
  • (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
  • (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
  • (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
  • (5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
  • (6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
  • (7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
  • (8) the actor is a public servant who coerces the other person to submit or participate;
  • (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
  • (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
  • (11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code. 

Texas Code Ann. §22.011(b).

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

No.






Capacity to Consent Answer

At what age is a person able to consent?

17 years old. Texas Code Ann. §22.011(a) & (c).

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

Yes, if the victim was a child of 14 years of age or older and the actor was not more than 3 years older than the victim at the time of the offense. Texas Code Ann. §22.011(e).

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 sexual assault is considered to occur without the consent of the other person where the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault either incapable of appraising the nature of the act or of resisting it. Texas Code Ann. §22.011(b)(4).

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

Yes, a sexual assault is considered to occur without the consent of the other person if the actor knows the other person is physically unable to resist. Texas Code Ann. §22.011(b)(3).

Does consciousness impact the victim’s ability to consent?

Yes, a sexual assault is considered to occur without the consent of the other person if the actor knows the other person is unconscious or if the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring. Texas Code Ann. §§22.011(b)(3) & (5).

Does intoxication impact the victim’s ability to consent?

Yes, a sexual assault is considered to occur without the consent of the other person if the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge. Texas Code Ann. §22.011(b)(6).

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

Yes, a sexual assault is considered to occur without the consent of the other person where:

  • (1) the actor is a public servant who coerces the other person to submit or participate;
  • (2) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
  • (3) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
  • (4) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code. Texas Code Ann. §§22.011(b)(8) – (11).

Note that it is an affirmative defense to the offense of sexual assault of a child, which is a person under 17 years old, if the actor was the spouse of the child at the time of the offense. Texas Code Ann. §22.011(e)(1).






Defenses Answer

Is consent a defense to sex crimes?

Generally, yes where consent is an element of the crime such as with sexual assault. Texas Code Ann. §22.011(b).

However, a sexual assault is considered to be without consent where the actor is a public servant, mental health services provider or clergyman. Texas Code Ann. §§22.011(b)(8) – (10).

Persons under 14 years of age are legally incapable of giving consent to sexual intercourse. May v. State, 903 S.W.2d 792 (App. 5 Dist. 1995).

Is voluntary intoxication a defense to sex crimes?

No. Texas Code Ann. §8.04.









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