If a person you had consensual sexual relations with accuses you of raping him or her, one defense is to argue what you know to be true — that the plaintiff consented to the interaction. Consent is a strong defense but only if you can prove the existence of certain elements.
FindLaw explains what consent is and what standards you must establish to use it as a viable defense to rape.
Consent as a defense to rape
For a sexual assault to occur, the sexual interaction must have taken place against the plaintiff’s will and possibly by force. If the defendant can prove that the alleged victim actually provided his or her consent, the prosecution no longer has a case.
Unfortunately, without written or verbal evidence, proving consent can be difficult. The courts frown upon many arguments that defendants have attempted to use in the past, with the courts completely disallowing many of them. One such tactic is calling upon the plaintiff’s sexual history to demonstrate that such behavior was in line with his or her past actions.
When consent is not a defense
In some cases, consent is not a defense option at all. For instance, the courts deem certain people incapable of providing consent, including minors, incapacitated individuals and people with certain mental disabilities.
In some states, a defendant may be able to claim that he or she was unaware of the defendant’s age and had good reason to believe that he or she was of the age of consent at the time of the alleged incident. Many, however, have strict liability standards, meaning that lack of knowledge or realization is not a viable defense to rape.
Consent is difficult to prove. If you or a child face rape charges, taking action right away is essential to ensuring an ideal outcome for your case.