Consent Law in Sexual Abuse Cases

Sexual assault, or sexual violence, occurs when someone engages in sexual activity with another person without their consent. The key word here is “consent.” Most people understand the basic definition of consent, but do not fully understand what it looks like or sounds like within a sexual context. Even fewer people understand the legal definitions of consent in various states, and how they are applied to sexual abuse cases. Below, our legal team breaks down everything you need to know about consent law in sexual abuse cases: what it is, the certain age of consent in Texas and the U.S. as a whole, how consent law was enacted to protect children, and so much more.

If you have been sexually abused by anyone, whether it be a teacher, a doctor, a therapist, a clergy member, or even a Boy Scouts leader, you may have grounds to take legal action in the state of Texas. Call 210-366-4949 to schedule a free consultation with our San Antonio sexual abuse lawyers today.

What is Consent?

The most basic definition of consent is an agreement or permission between two or more people for something to happen. Sexual consent is more complicated than this, because many people don’t know exactly what it looks or sounds like. Confusion or lack of understanding of sexual consent can very easily lead to sexual assault, especially among younger people.

Sexual consent is a clearly and freely communicated agreement between sexual partners before engaging in any sort of sexual activity, including oral sex, sexual intercourse, or any other form of sexual penetration. Consent before engaging in a sexual act can look and sound different, depending on the people involved. A few indications of consent can be nodding, smiling, prolonged eye contact, and relaxed or confident body language.

However, these indicators are not consent in and of themselves. Each sexual partner should verbally communicate what they want and what they’re comfortable with before any sexual touching or intercourse begins, that way everyone is on the same page and there is no risk of sexual assault occurring. Additionally, partners should continue communicating throughout the entirety of sexual activity to make sure everyone still feels safe, comfortable, and happy.

It’s also important to note that consent can be withdrawn at any time during sexual activity. For example, if someone verbally agrees to a specific sexual act at first, and then they decide at any point that they’re uncomfortable, afraid, and/or unhappy, they can change their mind and say “no.” The partner should respect this. If they don’t, and they continue on with the sexual act anyway, they are committing sexual violence.

Legal Role of Consent

Consent laws vary greatly from state to state, especially within the context of criminal sexual acts. However, states will generally determine if consent was exchanged and granted between two parties using the following guidelines:

• Affirmative Consent: Did the person clearly express, verbally and physically, that they wanted to engage in sexual activity?
• Freely Given Consent: Did the person give consent for sexual activity out of their own free will? Consent given through coercion, fraud, violence, or a threat of violence is not actually consent. For example, partner 1 says no, they don’t feel like engaging in sexual intercourse tonight, and partner 2 begs them to the point that they eventually say “yes.” Partner 1 then feels violated, disgusted, and/or uneasy after sexual intercourse, because the “yes” they eventually gave was not legally considered consent due to partner 2’s coercion.
• Capacity to Consent: Did the person have the legal ability, AKA capacity, to consent to sexual contact? Many factors go into determining a person’s capacity to consent to sexual activity, such as age, physical/mental disabilities, intoxication levels, vulnerability, unconsciousness, etc.

Capacity to Consent

Capacity to consent is possibly the biggest factor that states look at to determine if a partner can legally consent to a sexual encounter, especially within a criminal investigation. Each state looks at a variety of factors to determine someone’s capacity to consent, including:

• Age: Each partner must be above the state’s legal age of consent in order to have the capacity to say “yes” to sexual contact. Age of consent laws vary from state to state, but generally the age of consent in the U.S. is between 16 to 18. Children and teens below the age of consent do not fully understand what behaving and speaking in a sexual manner means, therefore, they cannot legally consent to sexual activity. The age difference between the partners can further complicate this situation.
• Developmental Disability: Does one partner have some kind of mental illness, developmental disability, and/or traumatic brain injury that could affect their understanding of sexual activity? If so, the partner may not have the capacity to consent.
• Intoxication: A person who is under the influence of drugs and/or alcohol does not have the full capacity to consent to sexual activity. Drugs and alcohol lower inhibitions and distort reality, which can make any sexual encounter become dangerous and/or nonconsensual.
• Physical Disability: If a partner is physically disabled in some way, they may not have the capacity to give sexual consent to someone else.
• Position of Power: The relationship between the two partners is a big factor that determines someone’s capacity to consent to sexual contact. If one partner is in a position of power over the other, then the other partner may feel pressured or obligated to say “yes” to sexual activity. For example, sexual contact between family members, students and teachers, doctors and patients, therapists and clients, bosses and employees, or clergy members and churchgoers may not actually be consensual depending on the specific circumstances.
• Unconsciousness: If one partner is clearly unconscious, then they cannot legally consent to sexual activity. For example, a person who is sleeping, heavily sedated or drugged, knocked out, or strangulated cannot say “yes” to sexual acts.
• Vulnerability: Some people are more vulnerable than others, such as elderly people, chronically ill people, or adults who depend on other adults for daily care. Vulnerable people like this may not have the legal ability to consent to sexual acts.

Age of Consent History in the United States

The age of consent is the minimum age that a minor can legally consent to sexual activity.

Age is one of the first factors that states look at when determining capacity of consent in a criminal investigation involving sexual violence, child pornography possession and/or distribution, etc. The age of consent varies from state to state. The age of consent is 16 in 31 states, 17 in 7 states, and 18 in 12 states. Statutory sexual assault occurs when a minor agrees to have sexual intercourse with an adult, and there was no emotional or physical force involved in the decision.

Age of consent laws in the United States have come a long way over the past 2 centuries. In as late as 1880, most state laws set the age of consent between 10 and 12 years of age. In Delaware, though, the age of consent was set at 7 years of age. By the turn of the 20th century, about half of U.S. states began raising the age of consent to about where it is now in order to protect minors from sexual exploitation and abuse. But even still, most states didn’t recognize child sexual abuse unless the female was younger than her male partner, or was a virgin before the sexual violence occurred. In fact, Mississippi was the last state to remove the chastity/virginity provision from its criminal code; this happened in 1998.

The U.S. as a whole became very serious about age of consent laws in 1995, after a study revealed the average age of fathers across the nation. The study highlighted a shocking statistic: more than 50% of teen pregnancies of girls between the ages of 15 and 17 were caused by men older than 20 years of age.

What is the Age of Consent in Texas?

The age of consent in Texas is 17. This means that if a legal adult engages in any form of sexual penetration with someone under the age of 17, they will be prosecuted under the state’s statutory rape laws. Statutory rape offenses in Texas are punishable by 2 to 20 years behind bars and a $10,000 fine.

What Are Romeo and Juliet Laws?

A problem arose from age of consent laws in the United States: teenagers and young adults with an age difference of only a few years were facing the same harsh penalties as statutory rape perpetrators who were much older than their victims. Thus, Romeo and Juliet laws were born.

Romeo and Juliet laws, also known as “close in age exemptions,” state that a legal adult can have consensual sexual activity with a minor as long as the age difference doesn’t exceed a certain number of years (generally 4 years, depending on state law). These laws protect teens and young people from criminal sexual offenses and the hefty penalties they carry. So if a young person, say 18 years old, engages in sexual conduct with a person younger than them, say 15 years old, then they would not be prosecuted under criminal laws for statutory rape (depending on the specific state they live in).

Does Texas Have a Romeo and Juliet Law?

Yes, Texas does have a Romeo and Juliet law which protects young people from facing penalties for criminal sexual offences. Sexual relationships between two people of a young age are legally allowed as long as both parties are above the age of 14 and the older partner’s age doesn’t exceed three years. In other words, a 14 year old and a 17 year old can legally have a consensual sexual relationship in Texas.

Can You Sue for Sexual Abuse in Texas?

Yes, you can file a civil sexual abuse lawsuit in the state of Texas if an alleged perpetrator engaged in sexual activities with you without your consent and you have suffered physical, emotional, or financial damages as a result. Victims can take legal action in civil court for rape, molestation, fondling, oral sex, incest, child prostitution, and other types of nonconsensual sexual activity.

In the past few years, the state of Texas has made it easier for victims to come forward and seek civil damages for sexual abuse by changing the statute of limitations. Prior to 2019, victims of child sexual abuse could only file a civil lawsuit within 15 years of their 18th birthday. But now, the statute of limitations is 30 years from their 18th birthday, meaning victims have the ability to file sexual abuse lawsuits until they’re 48 years old. This provides victims with a much longer “grace period” due to the confusing and often shameful nature of sexual abuse.

If you are interested in filing a civil sexual abuse lawsuit in the state of Texas, be sure to speak with an experienced sexual abuse lawyer at Janicek Law. We can help you determine if pursuing legal action is the best option for you and your situation.

Call San Antonio Sexual Abuse Lawyers at Janicek Law Today

If you have been sexually abused by a teacher, a doctor, a therapist, a clergy member, a Boy Scouts leader, or anyone else in a position of power, San Antonio sexual abuse lawyers at Janicek Law want to represent you. We understand how complex and emotionally distressing sexual abuse cases are, so our top priority will be supporting you and protecting your rights throughout the entire legal process. Call 210-366-4949 to schedule a free consultation at Janicek Law today.