Consent Laws
Maine

Last Updated: March 2020
Defining Consent Answer

How is consent defined?

Consent is not specifically defined.

However, Maine law provides that a person is guilty of a sex crime if that person engages in a “sexual act” with another person and:

  • (1) the other person submits as a result of compulsion;
  • (2) the other person, not the actor’s spouse, has not in fact attained the age of 14 years;
  • (3) the other person, not the actor's spouse, has not in fact attained 12 years of age;
  • (4) the actor has substantially impaired the other person's power to appraise or control the other person's sexual acts by furnishing, administering or employing drugs, intoxicants or other similar means;
  • (5) the actor compels or induces the other person to engage in the sexual act by any threat;
  • (6) the other person suffers from mental disability that is reasonably apparent or known to the actor, and which in fact renders the other person substantially incapable of appraising the nature of the contact involved or of understanding that the person has the right to deny or withdraw consent;
  • (7) the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual act;
  • (8) the other person, not the actor’s spouse, is either 14 or 15 years of age and the actor is at least 5 years older than the other person;
  • (9) the actor is at least 21 years of age and engages in a sexual act with another person, not the actor’s spouse, who is either 16 or 17 years of age and is a student enrolled in a private or public elementary, secondary or special education school, facility or institution and the actor is a teacher, employee or other official in the school district, school union, educational unit, school, facility or institution in which the student is enrolled;
  • (10) the other person has not expressly or impliedly acquiesced to the sexual act; or
  • (11) the actor is a law enforcement officer acting in performance of official duties and the other person, not the actor's spouse, is under arrest, in custody or being interrogated or temporarily detained, including during a traffic stop or questioning pursuant to an investigation of a crime.17-A M.R.S.A. 253, 254.

A person is also guilty of a sex crime if the actor intentionally subjects another person to any “sexual contact” and:

  • (1) the other person has not expressly or impliedly acquiesced in the sexual contact;
  • (2) the other person is unconscious or otherwise incapable of resisting and has not consented to the sexual contact;
  • (3) the other person, not the actor's spouse, is in fact less than 14 years of age and the actor is at least 3 years older;
  • (4) the other person, not the actor's spouse, is in fact less than 12 years of age and the actor is at least 3 years older;
  • (5) the other person, not the actor’s spouse, is in fact either 14 or 15 years of age and the actor is at least 10 years older than the other person; or
  • (6) the other person suffers from a mental disability that is reasonably apparent or known to the actor that in fact renders the other person substantially incapable of appraising the nature of the contact involved or of understanding that the other person has the right to deny or withdraw consent. 17-A M.R.S.A. 255-A.

A person is guilty of a sex crime if the actor intentionally subjects another person to any “sexual touching” if:

  • (1) the other person has not expressly or impliedly acquiesced in the sexual touching;
  • (2) the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual touching;
  • (3) the other person, not the actor’s spouse, is in fact less than 14 years of age and the actor is at least 5 years older;
  • (4) the other person suffers from a mental disability that is reasonably apparent or known to the actor that in fact renders the other person substantially incapable of appraising the nature of the contact involved or of understanding that the other person has the right to deny or withdraw consent. 17-A M.R.S.A. 260.

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

No.






Capacity to Consent Answer

At what age is a person able to consent?

16 years old. 17-A M.R.S.A. 254.

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

Yes. Engaging in a consensual “sexual act” with a person who is either 14 or 15 years of age is not illegal if the actor is less than 5 years older than that person; engaging in consensual “sexual contact” with a person who is either 14 or 15 years of age is not illegal if the actor is less than 10 years older than that person; engaging in consensual “sexual contact” with a person under 14 years of age is not considered unlawful sexual contact if the actor is less than 3 years older than that person; and engaging in voluntary “sexual touching” with a person under 14 years of age is not considered unlawful sexual touching if the actor is less than 5 years older than that person. 17-A M.R.S.A. 254, 255-A, 260.

Does elderly age impact the victim’s ability to consent?

Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and the actor is employed to provide care to a dependent person, who is not the actor's spouse or domestic partner and who is unable to perform self-care because of advanced age or physical or mental disease, disorder or defect. 17-A M.R.S.A. 253, 255-A, 260.

Does developmental disability and/or mental incapacity impact the victim’s ability to consent?

Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and:

  • (1) the other person suffers from mental disability that is reasonably apparent or known to the actor, and which in fact renders the other person substantially incapable of appraising the nature of the contact involved or of understanding that the person has the right to deny or withdraw consent;
  • (2) the actor owns, operates or is an employee of an organization, program or residence that is operated, administered, licensed or funded by the Department of Health and Human Services and the other person, not the actor's spouse, receives services from the organization, program or residence and the organization, program or residence recognizes the other person as a person with an intellectual disability or autism;
  • (3) the actor owns, operates or is an employee of an organization, program or residence that is operated, administered, licensed or funded by the Department of Health and Human Services and the other person, not the actor's spouse, receives services from the organization, program or residence and suffers from a mental disability that is reasonably apparent or known to the actor; or
  • (4) the actor is employed to provide care to a dependent person, who is not the actor's spouse or domestic partner and who is unable to perform self-care because of advanced age or physical or mental disease, disorder or defect. 17-A M.R.S.A. 253, 255-A, 260.

Mental disability can be either “reasonably apparent” or “known to the actor” and thus the statute allows for either “subjective awareness or an objective manifestation of the required disability.”  State v. Chabot, 478 A.2d 1136, 1138 (Maine 1984)

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

Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and:

  • (1) the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual act; or
  • (2) the actor is employed to provide care to a dependent person, who is not the actor's spouse or domestic partner and who is unable to perform self-care because of advanced age or physical or mental disease, disorder or defect. 17-A M.R.S.A. 253, 255-A, 260.

Does consciousness impact the victim’s ability to consent?

Yes. A person is guilty of a sex crime if that person engages in a “sexual act/contact/touching” with another person and the other person is unconscious or otherwise physically incapable of resisting and has not consented to the sexual act. 17-A M.R.S.A. 253, 255-A, 260.

Does intoxication impact the victim’s ability to consent?

Yes. A person is guilty of a sex crime if that person engages in a “sexual act” with another person and the actor has substantially impaired the other person's power to appraise or control the other person's sexual acts by furnishing, administering or employing drugs, intoxicants or other similar means. 17-A M.R.S.A. 253.

Please note that the above only applies if the perpetrator provides the intoxicants to the victim, but says nothing about instances in which the victim voluntarily consumed alcohol, that was not provided by the perpetrator, prior to the assault.

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

Yes.

  • Marriage is a defense to charges of gross sexual assault under 17-A M.R.S.A. 253, certain charges of sexual abuse of minors under 17-A M.R.S.A. 254, certain charges of unlawful sexual contact under 17-A M.R.S.A. 255-A, visual sexual aggression against child under 17-A M.R.S.A. 256, sexual misconduct with a child under 14 years of age under 17-A M.R.S.A. 258, and certain charges of unlawful sexual touching under 17-A M.R.S.A. 260.
  • Maine also criminalizes sex acts when there is a particular relationship between the actor and other person, regardless of consent. A person is guilty of a sex crime if that person engages in a sexual act or contact with another person and:
    • (1) the other person, not the actor's spouse, is under official supervision as a probationer, a parolee, a sex offender on supervised release, a prisoner on supervised community confinement status or a juvenile on community reintegration status or is detained in a hospital, prison or other institution, and the actor has supervisory or disciplinary authority over the other person;
    • (2) the other person, not the actor's spouse, is a student enrolled in a private or public elementary, secondary or special education school, facility or institution and the actor is a teacher, employee or other official having instructional, supervisory or disciplinary authority over the student;
    • (3) the other person, not the actor's spouse, has not attained the age of 18 years and is a resident in or attending a children's home, child care facility, facility operated by a family child care provider, children's residential care facility, drug treatment center, youth camp licensed or similar school, facility or institution regularly providing care or services for children, and the actor is a teacher, employee or other person having instructional, supervisory or disciplinary authority over the other person;
    • (4) the other person has not in fact attained the age of 18 years and the actor is a parent, stepparent, foster parent, guardian or other similar person responsible for the long-term care and welfare of that other person;
    • (5) the actor is a psychiatrist, a psychologist or licensed as a social worker or counseling professional or purports to be a psychiatrist, a psychologist or licensed as a social worker or counseling professional to the other person and the other person, not the actor's spouse, is a current patient or client of the actor;
    • (6) the actor owns, operates or is an employee of an organization, program or residence that is operated, administered, licensed or funded by the Department of Health and Human Services and the other person, not the actor's spouse, receives services from the organization, program or residence and the organization, program or residence recognizes the other person as a person with an intellectual disability or autism;
    • (7) the actor owns, operates or is an employee of an organization, program or residence that is operated, administered, licensed or funded by the Department of Health and Human Services and the other person, not the actor's spouse, receives services from the organization, program or residence and suffers from a mental disability that is reasonably apparent or known to the actor; or
    • (8) the actor is employed to provide care to a dependent person, who is not the actor's spouse or domestic partner and who is unable to perform self-care because of advanced age or physical or mental disease, disorder or defect.





Defenses Answer

Is consent a defense to sex crimes?

Yes, but consent is not a defense to sex crime of having carnal knowledge of female between 14 and 16. State v. Morang, 132 Me. 443, 172 A. 431 (Me., 1934).  Consent is also not a defense to charge of taking indecent liberties with the sexual organs of certain minors. State v Deveau, 354 A.2d 389 (Me. 1976).

Is voluntary intoxication a defense to sex crimes?

It depends.  For example, the crime of unlawful sexual contact requires proof that that defendant “intentionally” subjects another person to any sexual contact; since the defendant could not have been found guilty of the crime unless he acted intentionally, voluntary intoxication is a valid defense. State v. Crocker, 387 A.2d 26, 27 (Me. 1978).









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