In the aftermath of the rape and sexual harassment allegations involving Harvey Weinstein and the ensuing #MeToo campaign, American culture is taking a closer look at the ubiquity of sexual violations. Weinstein’s response sounded a common defense: that the behavior was consensual.
In Minnesota, analysis of whether consent exists for a given act at a given time depends on factors of communication, absence of coercion, age and capacity.
“You want to look at the entire situation—not only what happened in that particular moment, when two people were alone—but what was going on beforehand," says Jennifer Congdon, a criminal defense attorney with Congdon Law in St. Paul. "Were there other people who can say how the two parties were acting towards one another? Was there a delayed report, meaning maybe it wasn’t an issue of consent but whether someone regretted their actions the next day? You always hope for clear communication, whether it’s text messages from before or after, or conversations that took place. What did they say to their friends? Did they post on social media? Usually these things don’t happen in a vacuum.”
There must be an indication, by words or overt actions, of a “freely given present agreement” to engage in a particular sexual act. Failure to resist is not a basis for legal consent, nor is the mere existence of a relationship between the parties to the act. Consent is required every time, for every sexual act. The testimony of a victim of criminal sexual conduct does not require any further corroboration to show lack of consent. Someone who is mentally incapacitated or physically helpless is not legally able to provide consent, regardless of what they may communicate.
Absence of Coercion
Communication of consent is negated by the other party’s use of coercion. Under Minnesota law, coercion is defined as use of “words or circumstances” that cause reasonable fear of bodily harm, or the use of “confinement or superior size or strength” that causes submission. Proof of a specific threat (e.g., a weapon) is not required to show that coercion was present.
In order for consent to be valid, there has to be a legal ability to give it. With respect to age, the general rule is that you must be 16 years old to legally consent to sex. However, a variety of factors are assessed in terms of the age of the complainant and the difference in age between the parties to determine legal capacity to consent. For example, if the younger person is 14 to 16 years old and the other person is less than 4 years older, the person under 16 may provide consent. Similarly, there may be circumstances under which an individual between the ages of 16 and 18 may not have the capacity to consent.
In addition, a “significant relationship” between the parties or a current or recent “position of authority” over the complainant will affect the ability to provide consent, depending on age. A significant relationship would be a relative of the complainant, or an adult who lives at least part-time in the same place as the complainant but is not their spouse. A position of authority includes someone who is charged with responsibility for the care of a complainant under 18 but is not their parent.
Where an individual is over 18, there may still be reasons that consent cannot be provided. Factors include a mental disability or incapacity, or being “physically helpless.” In Minnesota, sex with someone who is asleep, unconscious or otherwise unable to communicate non-consent is deemed a criminal sexual act, based on lack of consent.
It’s important to note that violation of sexual harassment law is a separate issue, and is analyzed based on the presence of a current or anticipated employment relationship between the parties. Under the Minnesota Human Rights Act, sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature” where submission is made an explicit or implicit condition of obtaining employment, or is a factor affecting employment decisions.
For more information on prosecution of criminal sexual conduct crimes, Congdon advises talking to a reputable criminal defense attorney. “You probably don’t want to go it alone," she says. “You don’t want to be labeled a sexual predator or an abusive person; people don’t want that stigma. So if law enforcement is talking to you about sexual misconduct, get a lawyer right away. It’s very high stakes with long-lasting repercussions—not only for criminal convictions but jobs, your ability to get housing, student loans, background checks. It stretches into every nook and cranny of your life.”