The Mn Criminal Defense, Personal Injury & Family Law Blog
A Hutchinson Criminal Lawyer Looks at the Consent Defense
October 5, 2021
Of all the defenses in a sex crimes prosecution, such as lack of evidence and entrapment, consent may be the most potent and most dangerous one.
Consent is a potent defense because, if established, it completely unravels most sex crimes cases. If a McLeod County jury accepts the consent defense, it will return a not-guilty verdict. During pretrial negotiations, if it looks like the consent defense may be viable, prosecutors may offer a fire sale-type plea deal.
Consent is also a dangerous defense. During the trial, the defendant must typically testify. So, the prosecutor has a chance to cross-examine the defendant. And, pretty much anything goes in these exchanges. Moreover, if the defense does not resonate with the jury, some jurors may react very harshly against the defendant.
There is a wildcard here. On a 66-0 vote, the Minnesota State Senate recently joined the House and closed the marital exception loophole in the sexual assault law. The change must now go to a conference committee to iron out differences between the House and Senate versions. And, no one is sure what the final version will look like.
So, now more than ever, if the consent defense may be an option in your case, you need a highly-skilled Hutchinson criminal lawyer to break things down for the jury.
What Consent Is
According to Section 609.341, consent is “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.” To many McLeod County jurors, and many Hutchinson criminal lawyers, this definition is a bit out-of-step with modern human relations. Most people do not sign waivers before participating in sexual activities. So, “consent” is very rarely black and white.
But note that the statute includes “overt actions.” That could be something like going to the defendant’s room. In this instance, if another person saw the alleged victim and defendant leave together, the defendant may not have to testify. That’s usually a big plus for Hutchinson criminal lawyers. Of course, the alleged victim could always say that s/he changed her mind later and withdrew consent. But many jurors may have a hard time buying that story.
The consent can be limited. That’s why public flirting very rarely constitutes consent to perform a sexual act. These are two very different things.
What Consent Is Not
As the Legislature just made even more clear, a prior sexual relationship does not mean that the alleged victim consented this time. Consent is not an automatic payment arrangement. Just because you give consent once, you do not agree to future encounters.
Significantly, the statute only says that a prior sexual relationship is inconclusive. It does not say it’s irrelevant. If the alleged victim frequently and recently consented to sexual contact, that history puts circumstantial evidence of consent into a new light. A Hutchinson criminal lawyer may even be able to delve into past consent issues in the alleged victim’s background. This approach may be a way to bypass Minnesota’s rape shield law, at least in part.
The Rape Shield Law means criminal attorneys can’t submit the victim’s prior sexual conduct to the court. The only exception to this law is if a judge deems the victim’s prior record as substantial evidence in the case (i.e., that it has probative value).
Also according to the statute, consent is more than failure to resist. That’s assent and not consent. These are two different things. But once again, assent may be relevant. If the alleged victim assented and there is other circumstantial evidence, like intense flirting, a Hutchinson criminal lawyer may be able to employ a consent defense.
Alcohol and Consent
Many, if not most, of these incidents involve alcohol. Under the law, if the alleged victim was “incapacitated” or “helpless,” consent is impossible as a matter of law.
Words like “incapacitated” imply a very high BAC level of perhaps .22 or higher. As a very rough rule of thumb, .08 is legally drunk, .16 is stumbling drunk, .22 is passed-out drunk, and .28 is comatose, or perhaps even dead, due to alcohol poisoning.
So, if the alleged victim had two or three drinks, consent is still very possible. After four or five drinks, it’s a little harder to establish. Certain drugs may have a similar effect, especially something like Zolpidem (Ambien), Rohypnol (Ruffies), and other date rape drugs.
On a related note, physical restraint or natural unconsciousness (asleep) also makes consent impossible. Certain people cannot consent as a matter of law. This list includes children and people in certain professional relationships (e.g.psychiatrists and patients).
When Can a Criminal Lawyer Use the Consent Defense in Minnesota?
Hutchinson criminal lawyers typically use the consent defense in criminal sexual conduct crimes. In Minnesota, sex crimes fall into one of the following categories:
Fifth-degree sex crimes, which include sexual contact and crude conduct
Fought-degree sex crimes, which include sexual contact and statutory rape against victims of certain ages
Third-degree sex crimes, which include penetration crimes and statutory rape against victims of certain ages
Second-degree sex crimes, which include sexual contact crimes and aggravated statutory rape
First-degree sex crimes, which include penetration crimes and sex crimes committed against a person aged 13 or younger
In all but a few cases, a sex crimes defense attorney can apply the consent defense. We’ll talk about which cases are exceptions to this rule later. But, first, we’re discussing why you don’t want to receive a sex crime conviction in Minnesota.
A fifth-degree sex crime can earn offenders a gross misdemeanor, up to 1 year in jail, and/or a $3,000 fine. Sentencing increases to five years in jail and/or a $10,000 fine for repeat fifth-degree sex crimes.
Fourth-degree sex crimes generally earn offenders up to 10 years in prison, up to a $20,000 fine, or both. Third-degree sex crimes incur up to 15 years in prison and/or a $30,000 fine.
In Minnesota, second- and first-degree criminal sexual conduct convictions come with minimum sentencing guidelines.
For a second-degree conviction, the offender must serve at least 90 months or up to 25 years in prison and/or pay up to a $35,000 fine. First-degree convictions come with 144-month minimum sentences. But offenders could spend up to 30 years in prison, pay a $40,000 fine, or both.
In addition to these punishments, Minnesota sex criminals must submit their DNA to the court. Predatory Offender Registration (POR) and Community Notification of sex offender status are also requirements that apply in some cases.
You don’t want to be convicted of a sex crime in Minnesota. That’s why you need an experienced Hutchison criminal lawyer to help you understand whether the consent defense applies to your case.
When Can’t a Hutchison Criminal Lawyer Use the Consent Defense?
Consent is a defense in all but a few criminal sexual conduct cases. In which cases is the consent defense not allowed? We’re talking about four of them next.
Sex Crimes Against Minors
The consent defense is not allowed in cases where an offender committed a sex crime against a minor. This includes some instances of statutory rape as long as the offender is a certain number of months older than the victim.
The age of consent in Minnesota is 16. Any sex crime committed against a person aged younger than 16 cannot use the consent defense in court.
Note that the “mistaken age” defense also isn’t available for sex crimes against minors. The only exception to this rule is in some circumstances of statutory rape, especially when the offender and the minor are close in age.
Position of Authority Sex Crimes
Regardless of the age of the victim, if a person in a position of authority commits a sex crime against someone younger than him or herself, consent is not a defense. However, there must be a certain number of years separating the age of the offender and the victim.
People in positions of authority typically include parents, teachers, and coaches.
Significant Relationship Sex Crimes
Consent isn’t a defense when a person who holds a significant relationship with a minor commits a sex offense against that minor. This includes sexual criminal conduct perpetrated by parents or guardians, relatives, and other adults who cohabitate with the minor.
There used to be an exception here if the offender was married to the minor and committed a sex crime. However, since Minnesota closed the marital rape loophole, the consent defense isn’t available in these cases anymore.
Employment Sex Crimes
Regardless of the victim’s age, professionals employed in certain roles cannot use the consent defense against criminal sexual conduct charges. These employees include:
Any sex crime offenders partaking in the above roles cannot use the consent defense when a court brings charges against them.
Rely on a Diligent Attorney
Sex crimes are no joke in Minnesota. You could risk one to 30 years in jails and thousands of dollars in fines. Luckily, a sex crimes defense attorney can help reduce or even eliminate your charges using the consent defense.
Have you recently received a sex crime charge in Minnesota and think the consent defense applies to your case? Consent is a very high risk/reward defense in sexual assault prosecutions. For a free consultation with an experienced Hutchinson criminal lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.
Originally published on May 18, 2019 and updated on October 5, 2021.