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What is Legal Consent - in Practice and under the Law

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By Cara Landolfi & Michael Farhi

The topic of consent has been cast into the spotlight in recent months. The #MeToo movement and allegations against Harvey Weinstein and many more have raised the question of what constitutes legal consent. This was especially true in the allegation against comedian Aziz Ansari. In the highly controversial article that was written by his "date," the potential murkiness of consent in dating dynamics was put into question. 

All states have a legal definition for consent, whether by statute or caselaw, but there is no single legal definition. Each definition varies from state to state. Some states, including New Jersey, have an affirmative consent standard.  This means that an actual showing of consent is required to be freely given, by both parties. Sexual intercourse in the absence of this consent is a felony. 

Other states have an affirmative consent standard, but also require an act of force or violence for rape or assault. This means that while someone must give affirmative consent like in New Jersey, rape or assault cannot be found unless there is unconsented to force or violence. A few jurisdictions employ the idea of implied "acquiescence," to help define consent, but only in some instances. The variety of these definitions, and how they function in each of the jurisdictions, contribute to the confusion surrounding the idea of consent. 

The law tries to reflect society's behavior, and society's behavior should reflect the law. The definition of consent is no exception. Those who criticize an affirmative consent standard argue that real life dating and sexual practices will never be able to live up to this standard, because giving or asking for verbal consent in each instance is not realistic. 

It has also been problematic to require a finding of force in violence; instances of rape when someone is asleep, for example, are difficult to prosecute. Cases where the victim was under the influence or afraid not to give affirmative consent have also raised questions about the functionality of this standard. Jurisdictions with implied acquiescence standards face the obvious issue of the role of assumption of consent. 

These different standards and definitions mean that giving and getting consent in every jurisdiction varies greatly. But, there are elements to each that give an outline of appropriate and legal behavior. Here are three to ensure your encounter is legally consented to under these standards:

  1. Affirmative Consent.

Affirmative consent, so long as given freely and subject to No. 2 below, will be sufficient to meet the legal standard for consent in most states. It is best to have it verbal or written and should be given for each instance; blanket consent for the duration of a relationship may not meet this standard in all cases.  

  1. Capacity to Give Consent.

All states will require that the consent was given by someone with the capacity to give consent. This means that the giver must be of a certain age, which varies from state to state, where he or she is capable of understanding and making such a decision. The giver must also be of sound mind, is not under the influence and be conscious.

  1. No Assumptions.

Many cases turn on the presence of an assumption of consent, rather than actual consent. No assumptions should be made by either party in sexual encounters. Affirmative consent endeavors to capture what assumptions cannot and remove unnecessary issues of  miscommunication. 

If you have specific questions about consent issues, reach out to a legal professional in your jurisdiction for a better understanding.

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