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What is the legal definition of giving consent?

Different states have slightly varying definitions of terms such as rape, sexual abuse and sexual assault. The exact definition of these terms can have very important consequences for the outcome of a charge. It could mean the difference between innocence and jail time. The legal role and definition of consent is similar. Understanding the legal definitions of consent can help you to understand the law and the implications of certain charges,

Different types of consent

Consent can be very difficult to prove or disprove, because sometimes consent may be implied, misinterpreted or expressly given. Therefore, consent is divided into three main categories under the law:

  • Affirmative consent: The person verbally or physically communicated that he or she wanted to engage in the act in question.
  • Freely given consent: The person consented to the actions implicitly because he or she was not coerced or forced, and he or she had the opportunity to refuse.
  • Capacity to consent: This refers to the question of whether the person was mentally, physically or legally able to give consent to engage in the act in question.

Capacity to consent in more detail

If a person was deemed by the courts as not capable of giving consent, this may have occurred for one of many reasons. The issue is not black and white, and there are many factors that are taken into consideration when determining this. Firstly, age is a factor when determining whether a person is old enough to give consent to engage in sexual activity. Other factors include whether the person is intoxicated, mentally capable or stable and whether he or she was coerced or manipulated by the perpetrator.

Establishing consent can be a complex issue and it is important to speak to a trusted legal advisor if you have any questions or concerns.

Source: Rainn, "The legal role of consent," accessed Sep. 14, 2017

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