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Consent and What It Means in Texas Law

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Understanding Consent In Texas Criminal Cases

In many criminal cases involving sexually-based offenses in Texas, the issue of consent will be a major factor. The presence or absence of consent in a particular case can mean the difference between a criminal conviction and dropped or reduced charges.

For defense attorneys, proving that consent occurred in a sexual act can keep their client from being convicted of a crime. This means that consent is extremely important and, in many cases, a great deal of the evidence introduced will be focused on the issue of consent.


What Is Consent?

According to Chapter 1 of the Texas Penal Code, “consent” is defined as:

“Assent in fact, whether express or apparent”

To put it simply, this definition means that to consent to something is to agree to that thing taking place. In terms of sexual actions, a person consents to sexual activity if they agree with it or wish it to happen.

Performing a sexual action to another person when that person denies consent or cannot give consent is a criminal action in the state of Texas.

The Ability to Give Consent

Under Texas law, a person aged 17 or over who is of sound mind can consent to sexual activity. There are some conditions attached to this rule.

In order to give consent, a person must be able to understand the action that they are agreeing to. If they cannot, then consent has not been granted, even if that person says that they agree to it.

For example, people cannot give consent if they:

  • Are aged 16 or younger
  • Are unconscious or asleep
  • Have been administered a mind-altering substance
  • Are mentally incapable of understanding the act in question

Age and Consent

In Texas, the age of consent is 17. This means that any person aged 16 or younger cannot legally give consent to sexual activity. To understand this, it’s helpful to consider legal consent separately from personal consent.

For example, Becky is 15 years old and her boyfriend is 25. Her boyfriend asks her to have sex and she says “yes”. If they engage in sexual activity, a crime has been committed because Becky is not old enough to legally consent to sex. Even though both parties agreed to the activity, the 25-year-old boyfriend can be held legally accountable for sexual assault since he did not obtain legal consent.

There are certain exceptions to this rule, however. For example, if Becky and her boyfriend became legally married, then she could legally consent to their sexual intercourse and no crime would be committed.

Also, in Texas, a person who has consensual sex with a minor aged older than 14 but younger than 17 may not be charged with a crime as long as they are no more than three years older than the younger partner. For example, if Becky is 15 and her boyfriend is 18, he may not be held legally accountable for a crime if they engage in sexual activity.

Alcohol, Drugs and Consent

In reality, the issue of consent is not always perfectly clear. This is especially true when it comes to sexual activity.

Many people pair alcohol and drug use with sexual activity. Because these substances impair judgment, they may have an effect on the issue of consent.

For example, Alice and John meet at a bar. They each have several drinks and then return to Alice’s apartment where they smoke marijuana before having sex. Both Alice and John were intoxicated on drugs and alcohol, were they able to consent to their activity?

In many cases, this issue is argued in court by both the prosecution and defense. The prosecution may argue that Alice was too intoxicated to understand her situation and therefore could not give consent. The defense may argue that the case is merely about two adults who willingly became intoxicated before engaging in consensual sex.

It should be noted that, in some cases, drugs or alcohol can effectively render a person incapable of giving consent.

For example, a person who is under the influence of “date rape drugs“, such as GHB or Rohypnol, cannot legally give consent to sex. A person who administers these drugs, or any intoxicating drug, to a person in order to have sex with them is guilty of attempted sexual assault.

Also, a person who is rendered unconscious by excessive alcohol consumption cannot give consent, even if they agreed to sex earlier. For example, a woman who agrees to sex and then later becomes unconscious is no longer consenting to sex because she is not aware of what is happening.

In summary, any person who engages in any type of penetrative sexual activity or sexual contact may be guilty of a serious crime if they do so without clear and active consent.

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