Consent Laws
Virginia

Virginia does not provide a definition for consent, but defines rape as sexual intercourse (i) against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, and sexual battery as sexual abuse against the will of the complaining witness, by force, threat, intimidation or ruse. VA Code Ann. §§18.2-61; 18.2-67.4.

No.

15 years old. VA Code Ann. §18.2-63.

Yes.

• Any person 18 years or older who engages in a consensual sexual act with a child 15 years or older will be guilty of a misdemeanor. VA Code Ann §18.2-371.  If any person carnally knows, without the use of force, a child 13 years old but under 15 years old who consents to sexual intercourse and the accused is a minor and such consenting child is three or more years the accused’s junior, the accused will be guilty of a felony. If the consenting child is less than three years the accused junior, the accused will be guilty of a misdemeanor. VA Code Ann. §18.2-63.

No.

Yes, a person is guilty of rape if the person has sexual intercourse with a complaining witness through the use of the complaining witness's mental incapacity or physical helplessness.  VA Code Ann. §§18.2-61; 67.10(3).

“Mental incapacity” means that condition of the complaining witness existing at the time of an offense which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known. 

Yes, a person is guilty of rape if the person has sexual intercourse with a complaining witness through the use of the complaining witness's physical helplessness.  VA Code Ann. §§18.2-61; 67.10(4).

“Physical helplessness” means unconsciousness or any other condition existing at the time of an offense which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known. 

Yes, a person who is unconscious is deemed physically helpless. A person is guilty of rape if the person has sexual intercourse with a complaining witness through the use of the complaining witness’s physical helplessness. VA Code Ann. §§18.2-61; 67.10(4).

Yes, “mental incapacity,” a statutory term that applies to rape and other sex crimes, is not limited to a permanent condition and may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand the nature or consequences of the sexual act; the cause of the victim's lack of ability to give consent is not dispositive. Molina v. Comm., 636 S.E.2d 470 (2006). It is well established that a transitory circumstance such as intoxication may result in mental incapacity if the nature and degree of the intoxication has gone beyond the state of merely reduced inhibition and has reached a point where the victim does not understand the nature and consequences of the sexual act. Edwin Giovanni Chavez Macias v. Comm. of Virginia, 2021 WL 4532487 (Va. Ct. App. Oct. 5, 2021). 

Yes.

• An accused is guilty of sexual battery if he sexually abuses (i) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail, and the accused is an employee or contractual employee of, or a volunteer with, the state or local correctional facility or regional jail; is in a position of authority over the inmate; and knows that the inmate is under the jurisdiction of the state or local correctional facility or regional jail, (ii) a probationer, parolee, or a pretrial defendant or post trial offender under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services or agency and the accused is an employee or contractual employee of, or a volunteer with, the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail; is in a position of authority over an offender; and knows that the offender is under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail; (iii) a person detained or arrested by a law-enforcement officer and the accused is a law-enforcement officer; is in a position of authority over the person detained or arrested; and knows that the person detained or arrested by a law-enforcement officer is in the custody of a private, local, or state law-enforcement agency; (iv) a pretrial defendant or posttrial offender and the accused is an owner or employee of the bail company that posted the pretrial defendant's or posttrial offender's bond and has the authority to revoke the pretrial defendant's or posttrial offender's bond; or (v) a person serving as a confidential informant and the accused is a law-enforcement officer; knows that such person is serving as a confidential informant for the law-enforcement agency where such officer is employed; and such person is serving as a confidential informant or is expected to testify in a criminal case for which he assisted the law-enforcement agency with its investigation. VA Code Ann. §18.2-67.4.
• If any person providing services, paid or unpaid, to juveniles under the purview of the Juvenile and Domestic Relations District Court Law, or to juveniles who have been committed to the custody of the State Department of Juvenile Justice, carnally knows, without the use of force, any minor 15 years of age or older, when such minor is confined or detained in jail, is detained in any facility mentioned in § 16.1-249, or has been committed to the custody of the Department of Juvenile Justice pursuant to § 16.1-278.8, knowing or having good reason to believe that (i) such minor is in such confinement or detention status, (ii) such minor is a ward of the Department of Juvenile Justice, or (iii) such minor is on probation, furlough, or leave from or has escaped or absconded from such confinement, detention, or custody, he shall be guilty of a felony. VA Code Ann. §18.2-64.1.

• If a law-enforcement officer or an employee or contractual employee of, or a volunteer with, a state or local correctional facility or regional jail, the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home as defined in § 16.1-228, a state or local court services unit as defined in § 16.1-235, a local community-based probation services agency, or a pretrial services agency who is in a position of authority over a person detained or arrested by a law-enforcement officer, inmate, probationer, parolee, juvenile detainee, or pretrial defendant or posttrial offender carnally knows, without the use of force, threat, or intimidation, (i) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail or (ii) a person detained or arrested by a law-enforcement officer, probationer, parolee, juvenile detainee, or pretrial defendant or posttrial offender in the custody of a private, local, or state law-enforcement agency or under the jurisdiction of the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home as defined in § 16.1-228, a state or local court services unit as defined in § 16.1-235, a local community-based probation services agency, a pretrial services agency, a local or regional jail for the purposes of imprisonment, a work program, or any other parole/probationary or pretrial services program or agency and the accused knew that the person was detained, arrested, in custody or under the jurisdiction of a correctional facility, jail, Department of Corrections, Department of Juvenile Justice, secure facility, detention home, court services unit, community-based probation services agency or pretrial services agency, the accused shall be guilty of a felony. Further, a person is guilty of carnal knowledge of a pretrial defendant or posttrial offender if he (a) is an owner or employee of the bail bond company that posted the pretrial defendant's or posttrial offender's bond; (b) has the authority to revoke the pretrial defendant's or posttrial offender's bond; and (c) carnally knows, without use of force, threat, or intimidation, a pretrial defendant or posttrial offender. A law enforcement officer is guilty of carnal knowledge of a person serving as a confidential informant if he (1) knows that such person is serving as a confidential informant for the law-enforcement agency where such officer is employed; and (2) carnally knows, without use of force, threat, or intimidation, such confidential informant while such person is serving as a confidential informant or is expected to testify in a criminal case for which the confidential informant assisted the law-enforcement agency with its investigation. Such offense is felony.VA Code Ann. §18.2-64.2.

Note the rape statute applies “whether or not” the victim is the spouse of the actor. VA Code Ann. §18.2-61.

Yes.

In support of consent defense, defendant charged with rape may produce evidence of circumstances, including conduct or statements by victim, tending to prove consent and may testify as to his observations or perceptions of statements or conduct by victim suggesting consent, but the element to be proven by the state is the fact that intercourse was accomplished against victim's will, and, while the accused’s perception may be evidence bearing on the sufficiency of the proof of this element, it is not itself an element of the crime to be proven by the state. Clifton v. Comm., 22 Va.App. 178 (1996).

The Commonwealth need not demonstrate that the complaining witness cried out or physically resisted the accused, but the absence of such resistance may be considered when relevant to show that the act alleged was not against the will of the complaining witness. VA Code Ann. § 18.2-67.6.

Except in cases of first degree and capital murder, where proof of voluntary intoxication may negate deliberation and premeditation, See Waye v. Commonwealth, 219 Va. 683, —-, 251 S.E.2d 202, 211 (1979), such intoxication, whether from drugs or alcohol, is no defense to a criminal charge.
Griggs v. Commonwealth, 220 Va. 46, 52, 255 S.E.2d 475, 479 (1979).