Consent is always necessary before sexual conduct. Issues of age, position as an authority figure or person of power, developmental or mental capacity, and incapacity, either permanent or temporary, can change the standards of consent. Consent must occur before any physical contact. Other, more distant forms of sexual contact, such as sending sexually explicit materials over the internet, also require consent.
AGE
Sixteen is the age of consent in Minnesota, assuming the other partner is not an authority figure, such as a teacher or coach or police officer. For those in positions of authority, the partner’s age of consent must be eighteen.
Minnesota does not have a close-in-age exception, but does detail with degree of charges age differences between partners. In all instances, thirteen is the absolute line, below which statutory rape or statutory sexual conduct is said to have occurred. This involves several types of sexual behavior, including sexual conduct, communication of sexually explicit materials, and solicitation of children to engage in sexual conduct.
If both parties are under the age of eighteen, the difference in age between the partners matters. At four years of age between partners, the difference in development and understanding means consent becomes problematic. The degree of charges: first, second, third degree statutory conduct, is dependent on this age difference.
DEVELOPMENTAL OR MENTAL CAPACITY
Adults who are developmentally disabled or mentally incapacitated by injury or illness cannot give consent to sexual activity. Consider that if these adults have their affairs managed by guardians or other court-appointed persons, they cannot understand consequences, and may be open to coercive behavior.
INCAPACITY
People who are temporarily or permanently incapacitated cannot give consent for sexual activity. The most common cause of misunderstanding in this area comes when one or both parties has had too much alcohol to drink, or has used drugs either knowingly or unknowingly. If the alcohol or drugs has rendered a person unfit to drive, for instance, they cannot consent to sexual behavior. A person who is permanently incapacitated, such as an instance of a person with a head injury or in a coma, cannot give consent.
This understanding of incapacity exists even if the people involved were in a previous or current relationship. A married couple or people in an intimate relationship do not have blanket consent by the rights of the relationship. Each instance requires consent. Consent cannot be said to be given if one person is incapacitated.
Consent is required to be involved in any sexual activity. This includes consenting to physical contact, to hearing or seeing pornographic or other sexually explicit materials, or taking photographs or videos. Prior consent does not mean consent continues in a relationship or covers all possible activities.
AUTHORITY FIGURES AND COERCION
People who work or live in a position of authority need to exercise care regarding consent. Teachers and coaches, even those who are volunteering, have positional authority, and can be considered to coerce sexual behavior out of an unwilling partner who is uncomfortable or unsure how to back away. First responders and public safety personnel, military in a peacekeeping or occupation role, and other uniformed authority figures are always in a position of authority which may make consent problematic. Those who have subordinates in a work situation have positional authority and power over others. Those who work for the government can be considered to have coercive power.
With those in positions of power and authority, and coercion, it may not be enough to understand consent the way consent would be given between people who have equal power. If one person has the power over employment, immigration status, incarceration, or even less dangerous power imbalances, such as a school principal and the parent of a student, those power imbalances may cause one participant to not feel able to refuse or leave an unsafe or uncomfortable position.
WHEN CAN CONSENT BE WITHDRAWN?
Consent can be withdrawn an any point during an encounter. Consent can be withdrawn for certain types of sexual behavior. For example, consenting to one type of sexual conduct does not give blanket consent. If one partner becomes incapacitated during an encounter, due to drink or drugs, consent is withdrawn at the incapacity.
Consent to sexual contact needs to be carefully understood between people who know each other well enough to understand both verbal and nonverbal forms of communication. Both consent and withdrawal of consent can be accomplished with both verbal and nonverbal means.
For more information, or for assistance, please contact us.