The Legal Standards To Determine Sexual Consent in Minnesota

Use these links to jump to different sections:

• 1. Communication
• 2. Absence of Coercion
• 3. Age of Consent
• 4. Capacity
• Sexual Harassment is a Separate Legal Issue
• Seek Legal Advice from a Reputable Criminal Law Attorney

Since the #MeToo movement, American culture has taken a closer look at the ubiquity of sexual violations—sexual assault, sexual harassment, and sexual abuse in all its forms. A major issue in these cases is the question of whether consent was given.

States have their own standards defining consent to a sexual act. In the state of Minnesota, analysis of whether consent exists for a given act at a given time depends on the four factors of:

1. Communication;
2. Absence of coercion;
3. Age; and
4. 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.”

1. Communication

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 a lack of consent. Someone who is mentally incapacitated or physically helpless is not legally able to provide consent, regardless of what they may communicate.

2. Absence of Coercion

Communication of consent is negated by the other party’s use of coercion.

Under Minnesota law, coercion is defined as the 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 (for example, a weapon) is not required to show that coercion was present.

3. Age of Consent

For consent to be valid, the individual must have legal capacity. The general rule is that you must be 16 years of age to legally consent to sex. However, a variety of factors are assessed regarding the complainant’s age and the difference in age between the parties.

For example, if the younger person is between 14 and 16 years of age and the other person is less than 36 months older, the person under 16 may provide 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 person in a position of authority includes someone who is charged with responsibility for the care of a complainant under 18 but is not their parent.

4. Capacity

Where an individual is over 18, there may still be reasons that consent cannot be provided. Factors include a mental 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.

Sexual Harassment is a Separate Legal Issue

It’s important to note that violation of sexual harassment law is a separate issue and is analyzed based on a current or anticipated employment relationship between the parties.

Under the Minnesota Human Rights Act, sexual harassment includes:

• Unwelcome sexual advances;
• Requests for sexual favors;
• Sexually motivated physical contact; or
• Other verbal or physical conduct of a sexual nature where submission is a condition of obtaining employment or affects employment decisions.

Learn more about sexual harassment laws.

Seek Legal Advice from a Reputable Criminal Law Attorney

For more information on the prosecution of criminal sexual conduct crimes, Congdon advises talking to a reputable criminal defense attorney in your jurisdiction.

“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.”

For more information on this area of law, see our overviews of criminal defense and sex offenses.