A Hutchinson Criminal Lawyer Looks at the Consent Defense

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. 

Sex Crime Penalties in Hutchison, MN

Being convicted of one or more of sex crimes in Minnesota comes with serious penalties.

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:

  • Psychotherapists
  • Clergy members
  • Correctional officers
  • Masseuses

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.

Seven Sex Crime Defenses that Buffalo, MN Felony Lawyers Use in Court

Juror sympathy is often an effective defense in criminal cases. If jurors sympathize with defendants, they often look for ways to acquit them. But appeals to sympathy almost always fall on deaf ears in sex crime cases. Furthermore, alternative approaches, like attacking the alleged victim, often backfire.

So, most attorneys rely on the presumption of innocence. This presumption is very difficult to overcome. To set things up, Buffalo, MN felony lawyers often ask jurors to consider a fictional headline, such as “Easter Bunny Accused of Child Abuse.” There is no way anyone would believe that, and until the state proves otherwise, the allegations against the defendant are similarly meritless.

To drive home the presumption of innocence in specific instances, there are a number of defenses available. At least one of them is almost sure to fit the facts of any given sex crimes case.

Untrue Allegations

Sex crimes allegations are almost never completely false. That’s especially true in most criminal sexual conduct matters. Sometimes, however, these allegations do not hold up under scrutiny. That’s especially true in child sexual abuse cases.

Sometimes, parents use such allegations to gain leverage in a family law proceeding. Many jurors raise an eyebrow if there is an ongoing divorce proceeding. They really raise an eyebrow if the defendant is involved in a child custody dispute and the other party to that dispute was involved in the complaint. Future family law disputes may have a similar effect. If the marriage is on shaky ground, some adults will use the criminal justice system to smear the other parent’s reputation.

Mistaken Identity

Identification issues are often present either during the alleged incident or during a subsequent lineup. In both situations, Buffalo, MN felony lawyers may successfully challenge the identification.

In many assault cases, alleged victims only get partial glimpses of suspects. Additionally, the area is usually dark. Finally, there is a good chance that the alleged victim was drinking.

Lineups are often biased. That’s especially true if the lineup was not double-blind. Neither the administering officer nor the witness should know the suspect’s identity. Otherwise, the lineup may be tainted. Perhaps officers place the suspect in the middle of the lineup or they linger just a moment when putting the suspect’s picture on the table.

Lineup instructions may matter too. If the administrator said the suspect “may or may not be” in this lineup, the results are usually reliable. But very few Wright County law enforcement officers use such language.

Consent and Buffalo, MN Felony Lawyers

Subdivision 4 of Section 609.341 is often an effective defense in criminal sexual conduct cases. Essentially, consent is “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.”

This defense is hard to establish because there is usually no corroborating evidence either way. Circumstantially, the longer the alleged victim waited to report the incident, the more likely it is that the alleged victim consented. Generally, the defendant’s subjective, reasonable interpretation is enough. The alleged victim must be relatively clear, but the alleged victim need not have signed a waiver.

Lack of Intent

Buffalo, MN felony lawyers often use this defense in non-contact sex crimes, like exposure cases. Typically, defendants must either intend to sexually gratify themselves or be reckless (extremely indifferent) as to whether the alleged victim may be offended.

If there is no physical, biological evidence, sexual gratification is not easy to prove. A supposition is not enough. Wright County prosecutors must establish intent beyond any reasonable doubt. Recklessness is not easy to prove either. Being naked next to an uncovered window is not reckless, but being naked in a public park at noon is probably reckless.

Chain of Custody

The physical evidence in a criminal sexual conduct case moves a lot. At a minimum, it usually goes from a clinic to a police laboratory to an evidence room to the courtroom. The evidence may make many additional stops along the way.

A gap in the chain of custody does not invalidate the evidence as a matter of law. But it does create doubt as to the evidence’s authenticity. That doubt is all a Buffalo, MN felony lawyer needs to obtain an acquittal.

Failure to Mirandize

Police officers must read defendants their Miranda rights, such as “you have the right to remain silent,” prior to custodial interrogation. If officers ask any questions, no matter how innocent they seem, and the defendant does not feel free to leave, custodial interrogation has begun. If the suspect was not Mirandized, any statements or physical evidence officers obtained may be inadmissible at trial.

Unlawful Search

Generally, officers must have valid warrants before they enter dwellings, vehicles, or any other nonpublic places. An exception, such as an invitation to enter a building, often applies.

Evidence seizure is a different matter. Search warrants cannot simply give blanket permission to search a building. They must be specific as to the locations to be searched and the evidence to be seized. Common search warrant exceptions include consent searches, plain view seizures, and exigent circumstances (emergency safety) searches.

Team Up with Aggressive Attorneys

Sex crimes have numerous possible defenses. For a free consultation with an experienced Buffalo, MN felony lawyer, contact Carlson & Jones, P.A. Home and jail visits are available.

A Buffalo, MN Felony Lawyer Examines the Latest R. Kelly Case

In August 2019, Hennepin County officials charged singer Robert S. Kelly with two counts of soliciting a child prostitute in connection with a 2001 incident in Minneapolis.

According to court documents, the alleged victim was 17 when she asked R. Kelly for his autograph in July 2001. Kelly allegedly gave her the autograph and a telephone number. While she was inside Kelly’s Minneapolis hotel room, Kelly gave her $200 to dance naked. He fondled her as she danced, according to the complaint. After she saw a January 2019 Lifetime TV mini-series entitled Surviving R. Kelly, she called police. An investigator spoke with her brother, who said that his sister told him she danced for Kelly in his hotel room, but she provided no further details.

“It is despicable that Mr. Kelly used his fame in order to prey on underage girls,” declared Hennepin County Attorney Mike Freeman during a news conference announcing the charges.

Probable Cause in Sex Crime Cases

Even though probable cause is a very low standard, a hearing on this issue in the R. Kelly Minnesota prostitution case could go either way.

Courts have intentionally never defined “probable cause.” But a case from neighboring Iowa may shed some light on the subject. In 2015, officers pulled over a defendant for traveling 66mph in a 65mph zone. The officers knew that since 1mph is within a radar gun’s margin of error, the charges would not hold up in court. Nevertheless, the judge ruled that officers had probable cause.

In the R. Kelly case, officers relied heavily on the brother’s statement. He recalled that his sister danced for R. Kelly in his hotel room, and it’s reasonable to assume she did not dance the polka. Although the multiple leaps from seductive dancing to nude dancing to inappropriate touching is a bit tenuous, it may be enough for probable cause, given the aforementioned 66-in-a-65 case.

However, this case involved some grandstanding. Going into an election year, the Hennepin County Attorney staged an elaborate press conference to announce the charges. It is also reasonable to assume, given the lack of evidence, that authorities never would have followed up on the tip if the defendant had been Kelly Roberts instead of Robert Kelly. More on that tip below.

Establishing Guilt in Sex Crime Cases

The R. Kelly sex crime charges may be able to survive a probable cause hearing, but it’s extremely doubtful that prosecutors could establish guilt.

The brother’s corroboration is hearsay. So, it is admissible for probable cause purposes, but inadmissible for guilt-innocence purposes. As a result, prosecutors would only have a twenty-year-old statement from the alleged victim. Any physical evidence, such as security footage that shows the alleged victim going into the hotel room, is probably long gone by now.

Significantly, the alleged victim said nothing about the incident until she saw a one-sided “documentary” about the subject. That link is not enough to discount her story, but it is enough to raise an eyebrow.

When the alleged victim testifies in court, as she must do under the Confrontation Clause, she will probably testify with great precision as to what happened in the hotel room. But her memories of ancillary events, like the hotel room number or even the name of the hotel, might be rather fuzzy. That incongruity may be enough for at least a few jurors to doubt her version of events.

The prosecutor has the burden of proof to establish all elements of an underage prostitution case. That includes either sexual penetration, which clearly did not happen in this case, or sexual contact, which would be difficult to prove.

How Buffalo, MN Felony Lawyers Reduce Sex Offense Consequences

In many situations, the collateral consequences of a sex crime conviction are worse than the direct consequences. Court supervision periods and even prison time pass rather quickly, at least in most cases. But a registration requirement could last for a very long time and significantly affect everyday life.

In Minnesota, an End-of-Confinement Review Committee has considerable power. These five individuals — all of whom are connected to law enforcement in some way — assign a threat level to each offender. When making this assessment, the Committee must consider the following items:

  • Severity of the offense,
  • Criminal history,
  • Offender’s characteristics (mostly any history of substance abuse),
  • Support network,
  • Offender’s statements, or other evidence, which indicate reoffense is likely, and
  • Any mitigating physical conditions (e.g. the offender is very old or has a disability).

Low-risk Level I offenders must register, but only law enforcement has access to the data. For moderate-risk Level II offenders, law enforcement releases registration information to daycares and other such organizations which may be at risk. Everyone knows about high-risk Level III offenders. Additionally, when Level III offenders relocate, law enforcement holds community events to announce the relocation.

A Buffalo, MN felony lawyer can present evidence to the committee, such as psychological evaluations and witness statements, to convince the committee to assign a lower risk level. At a later time, an attorney may be able to reduce the level one notch or even erase the defendant’s name from the database altogether.

Contact a Tenacious Attorney

Delayed report sex crimes cases are difficult to prove in court. For a free consultation with an experienced Buffalo, MN felony lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

Buffalo Criminal Lawyers and Sex Crimes Defenses

Minnesota law includes a wide array of sexual offenses. Many of them require some sort of physical contact. But in other cases, the defendant and alleged victim do not have to be in the same room or even on the same continent. Since there are so many types of sex crimes, a Buffalo sex crimes attorney has many options in terms of affirmative defenses.

In affirmative defenses like the ones dicussed below, the defendant has the burden of proof. THat’s different from the elements of the offense. On those points, the prosecutor must establish guilt beyond a reasonable doubt.

Perhaps most importantly, sex crimes prosecutrions have lots of movign parts. These cases often involve complex search warrants, questionable eyewitness testimony, and other such issues.

Can a Buffalo Criminal Lawyer Prove Entrapment in a Sex Crimes Case?

Even between adults and minors, sexting is generally not illegal in Minnesota. Exchanging suggestive or explicit internet messages with a minor could have a number of serious consequences. But a criminal conviction is not one of them.

However, if the text, email, chat room, or other conversation goes to the next level. criminal liability may be an issue. It is not only illegal under Minnesota and federal law to possess child pornography. It is also illegal to solicit such material.

Many times, police detectives pose as underage girls and enter online chat rooms. Such a conversation could result in criminal charges. A reasonable belief about the other person’s age and identity can either be a defense or a basis for prosecution. But even if “the girl” entices a defendant (e.g. do you want me to send you a dirty picture), the entrapment defense may not apply.

Legally, for the entrapment defense to hold up in court, the defendant must have no predisposition to commit the charged offense.

The online environment often comes into play here. If the conversation occurred in a sex chat room, a Buffalo criminal lawyer would be hard-pressed to show that the defendant had no presdisposition. However, the outcome may be different in another online forum, such as Facebook messaging.

Is Consent a Defense?

Consent is never a defense in online exchange prosecutions. As a matter of law, minors cannot consent to sexual activity. The same thing applies to mentally impaired individuals, incapacitated (e.g. substance-impaired) individuals, and certain other people.

Additionally, consent is very hard for Buffalo criminal lawyers to establish in certain cases, such as doctor-patient or clergy-parishioner. Doctors, priests, and other such professionals have so much moral authority that people like patients and parishioners are not an even footing with them in terms of sexual consent.

However, consent may be a defense to most other kinds of sexual battery cases. This sinister-sounding term really means any unwanted sexual contact of any degree. Section 609.341 defines consent as “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.” Furthermore, consent “does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.”

That’s a very limited definition. Only an absolute and unqualified “Yes” is consent. “Maybe later,” “Let’s get to know each other first,” and any other equivocal language is not consent. Furthermore, assent is not the same thing as consent. Finally, a person can withdraw consent at any time.

What Are Some Investigatory Problems in Sex Crimes Cases?

In both remote and personal sex crimes prosecutions, and in all other types of criminal cases, police officer and prosecutor mistakes have significant consequences.

Lack of evidence is sometimes an issue. In remote cases, if the defendant used something like a Virtual Private Network, it’s difficult to tie a specific device with a specific exchange of messages. In sexual battery cases, the alleged victim may have only seen the defendant for a moment in bad lighting.

Prosecutors are not perfect in these cases either. Many times, government lawyers are prone to accept false allegations at face value. Statistically, while they may be fatally mistaken about the details, very few alleged victims invent allegations out of thin air. However, these situations do occur. So, it’s always important for Buffalo criminal lawyers to have independent professionals interview alleged victims. These professionals know how to detect false testimony. For example, if there is a parallel proceeding in family court, there’s a good chance that the abuse or other allegation is either fabricated or inflated.

Connect with Aggressive Attorneys

Serious sex crimes allegations demand a vigorous defense. For a free consultation with an experienced Buffalo criminal lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Wright County and nearby jurisdictions.


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