Sexual Relations: What Is Implied Consent?

For a sexual act to be legal, there has to be consent on both parts. But what happens when one person thinks there was an agreement, and other person disagrees?

This situation can be difficult to reconcile. Often, sexual misconduct accusations occur because of the assumption of implied consent.

A sex crime attorney with a good track record may be able to get the defendant off the charges. But the allegation could have been avoided in the first place with knowledge.


Defining Explicit Consent

The thing to remember about consent is that it has to be mutual. Sexual consent occurs before you’re engaged in any kind of sexual activity with another person, and it should be clearly and explicitly communicated.

Each person has boundaries, whether they share them with the other person or not. To respect the wishes of your partner, you should ask for consent before moving on to any new sexual activity. Otherwise, you’re risking an accusation of sexual assault or rape.

Sexual behaviors and activities are consensual only if they were freely given. You can’t coerce, pressure, manipulate, or take advantage of someone under the influence of drugs or alcohol and call it consent.

Any party in the activity can revoke their consent, too, at any time. Both parties must be informed about what’s going to happen, and they should be interested in and excited for the next steps.

In short, the entire process is explicitly made clear by everyone engaging in the sexual behavior, and every party is explicitly consenting. But what about when consent is implied?


Sexual Relations: What Is Implied Consent?


Defining Implied Consent

In almost every sex crime court case, the factor of implied consent is brought up. For this reason, it’s clearly addressed in the law in each state.

The elements of the crime are taken into account. Implied consent, if proven, can be a legitimate defense against a sexual allegation. The defendant’s attorney must know how to prove the offense was consensual, or that the defendant thought the consent was implied.

A person’s actions and words or silence can be taken as implied consent. But this is analyzed on a case-by-case basis. The problem is that implied consent is hard to prove in an encounter where it’s usually only two people involved.

If one person interprets the other’s behavior as consensual, and the sexual activity occurs, the other party may not have been interested. Later, they could claim that they were assaulted or raped.

Other elements are used to determine implied consent versus assault, such as force. If force was used, and no consent was given, the laws of the state could say the defendant was guilty.

Do Past Relationships Together Imply Consent?

Implied consent defenses depend on the laws in the state and the charges themselves. As a rule, though, words and actions must be freely given to make a behavior consensual.

But simply because the sexual act had occurred before, or the two parties were in a relationship together, does not imply consent. Even married couples must be respectful of each other’s boundaries, obtaining consent before every sexual act. In some states, marital rape is legal, but most laws are getting on board with punishments for spousal violence.

To avoid an accusation of sexual misconduct or assault, be as clear and explicit as possible when you’re trying to get consent. Misunderstandings in the heat of the moment can turn into life-changing assault charges.

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