WHAT DOES “AFFIRMATIVE CONSENT” FOR SEXUAL ACTIVITY MEAN?
The state of Texas treats sex crimes very seriously. Those who have been accused of one of these crimes—as well as those who accuse others—need to realize the severity of their actions. According to the Dallas Police Department, in 2021 there were 792 incidents of sex offenses in the city and this includes 386 incidents of rape. While many of these are terrible crimes, in some cases, both victims and offenders may believe there was a misunderstanding about consent, specifically when it comes to gaining affirmative consent. Because of these potential misunderstandings, it’s essential that everyone knows what consent really means.
If you have questions about consent, or if you’re facing a sexual assault or rape charge and believed you had consent at the time, call the attorney at The Linder Firm in Dallas, Texas to discuss your options. You deserve a strong defense of your rights.
Defining Affirmative Consent Under Texas Law
By law, the state of Texas defines consent as “assent in fact, whether express or apparent.” Essentially, it means that all parties involved in sexual activity have agreed to take part and that consent is given voluntarily and actively—meaning either party can withdraw their consent at any time. “Express” means that consent may be given verbally, but “apparent” means it can also be communicated by your actions. This definition is incredibly important to understand because both parties must legitimately believe they have affirmative consent to avoid accusations of assault.
Additionally, there are some circumstances where even the belief of consent is not a valid defense. For example, if it’s found that the perpetrator used force or coercion to get affirmative consent, they can still be charged with a sex crime because the consent was not given voluntarily. In other cases, if the victim had shown signs of severe impairment or intoxication, then they cannot legally give consent. This is why everyone must make efforts to have clear communication and check in regularly with their sexual partners to make sure they are cognizant and actively engaged in affirmative consent.
Lastly, if the victim is a minor, they are not legally able to give consent, and in Texas, this means anyone under the age of 17. There are some exceptions to this law, commonly known as the “Romeo and Juliet” rule, which states that two teenagers of roughly the same age can consent to sexual activity together. For example, a 15 year old and a 17 year old can consent to sexual activity together even though they are both minors. However, it’s always illegal to engage in a sexual act with someone under the age of 14, regardless of the age of the other party.
Affirmative consent is an ongoing process and either party can change their minds at any point. Withdrawal of consent can happen at any time, should be respected by both parties, and should stop the current activity so you can communicate with your partner. Consent can also be based on conditions that one partner sets forth before or during sexual activity, and if those conditions are violated, this would result in a lack of consent. This is true even if you are married to the other person.
How to Avoid Failure to Obtain Affirmative Consent
The best approach to make sure you have and maintain affirmative consent is to have clear lines of communication at all times with any sexual partner. You should ask your partner direct questions such as, “What would you like to do?” or “Do you want to have sex?” It’s much better to receive verbal consent, although in some cases non-verbal consent can be given. Pay attention to whether a partner is highly responsive and actively participating in sexual activity.
Once you receive consent, you should keep communicating with the partner through all sexual activity to ensure they are still actively engaged. It can help to talk after sexual activity as well, especially if you’ve been with a new partner and you may not fully understand their communication style or non-verbal cues. Misunderstandings can happen; the best way to address them is directly and honestly to ensure they don’t happen again.
In all circumstances, you should avoid sex when either participant is significantly drunk or high, as their thinking will be impaired and they are not legally capable of giving consent.
Turn to Knowledgeable Legal Guidance
If you’re in Dallas, Texas or anywhere throughout Dallas Metro and North Texas and would like to speak with a criminal defense attorney, contact The Linder Firm today to set up a consultation. These topics can be hard to discuss and you need legal counsel who not only understands the legal ramifications but will also listen to your side of the story and uphold your rights. Attorney Phillip Linder has over 30 years of experience helping clients both inside and outside of the courtroom. Set up a confidential appointment as soon as possible.