Without Consent is More Than Saying “No.”
Most sexual offenses require a showing that the act was committed without consent of the victim. One would naturally think that “without consent” is an easy notion: it means that the victim did not want the perpetrator to commit the sexual act on him or her.
Without consent, however, is a term that has been defined and redefined by our legal system over decades and currently acts as an umbrella over a number of different scenarios. The Utah Legislature has found it necessary to create many different definitions of without consent as applied to sexual acts.
There are Various Definitions Under Utah Law
In fact, there are twelve definitions that are considered “without consent” for purposes of the criminal code relating to sexual offenses in the state of Utah. Those include:
—the victim expresses lack of consent through words or conduct – this of course is the basic definition that most people think of when thinking about what is considered consent.
–the actor overcomes the victim through the actual application of physical force or violence – this also falls under the more basic definition of what we think about when someone sexually violates someone else. An act of violence has traditionally been the common theme among sexual assaults.
–the actor is able to overcome the victim through concealment or by the element of surprise – this is an interesting definition and could include a multitude of very interesting and strange fact patterns. One example could be that the perpetrator awaits the victim in a bathroom and assaults the victim from behind.
—the actor coerces the victim to submit by threatening to retaliate in the immediate future against the victim or any other person, and the victim perceives at the time that the actor has the ability to execute this threat – this could also be called “duress” and it makes sense that one could not consent while under duress.
—the actor coerces the victim to submit by threatening to retaliate in the future against the victim or any other person, and the victim believes at the time that the actor has the ability to execute this threat – this is another way of saying that the victim was under “duress”.
—the actor knows the victim is unconscious, unaware that the act is occurring, or is physically unable to resist – for example, a perpetrator assaults his victim while the victim is asleep.
—the actor knows or reasonably should know that the victim has a mental disease or defect, which renders the victim unable to, appraise the nature of the act, resist the act, understand the possible consequences to the victim’s health or safety, appraise the nature of the relationship between the actor and the victim – this could be satisfied with a showing that the victim suffered from severe schizophrenia and the perpetrator used the victim’s mental illness to engage in sexual conduct with the victim.
—the actor knows that the victim participates because the victim erroneously believes that the actor is someone else – For example, a man who is somehow able to convince a woman that he is her husband and then sleeps with her would be doing this through the element of surprise or concealment and it therefore would not be with her consent.
—the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim’s knowledge – a common example of this would be drugging a victim and then sexually violating that person while the person is unconscious.
—the victim is younger than 14 years of age – anyone under 14 years old cannot consent, no matter what.
—the victim is younger than 18 years of age and at the time of the offense the actor was the victim’s parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim – thus, although a 17-year-old can consent to have sex with a 19-year-old partner, he/she cannot have sex with a step parent. It is nonconsensual by law and considered rape.
—the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate, under circumstances not amounting to the force or threat – an example of enticing 14,15,16,17-year-olds may include making promises of gifts or financial gain.
—the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested – doctors, clergy, therapists if they use their status as a treatment provider to engage in sexual activity with patients or parishioners are considered to engage in nonconsensual sexual activity.
