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What Constitutes “Affirmative Consent” for Sexual Activity?

Darryl A. Stallworth Law Office Jan. 20, 2022

The definitions of “consent” vary depending on the location and circumstances of the alleged sexual activity. However, the key concept always stays the same: consent refers to a voluntary agreement of one person to engage in mutually agreed-upon sexual activity with another person.

If you are facing accusations of a sex crime and want to explore your defense options, “affirmative consent” might be one of them, depending on the circumstances. Let me review your particular case and determine whether you can use “consent” as your defense against the charges.

As a criminal defense attorney and former Alameda County prosecutor, I know how to develop a strong defense strategy that takes all the nuances of your case into consideration. At Darryl A. Stallworth Law Office, I defend clients against sex crime accusations in Oakland, California, and throughout Alameda County, San Francisco, the Bay Area, and Northern California.

Defining Affirmative Consent Under California Law

Affirmative consent can be defined as a voluntary and conscious agreement to engage in sexual activity with another person. However, it is critical to keep in mind that affirmative consent is revocable, which means anyone can withdraw their consent at any given time.

Affirmative consent is often used as a defense in sexual assault, rape, and other sex-related crime cases. For sexual activity to be considered “consensual,” the parties should clearly, consciously, and voluntarily communicate their consent. When engaging in sexual activity, it is the responsibility of each party to ensure that they have the affirmative consent of any partner participating in the activity.

What Does Not Constitute Consent for Sexual Activity

Contrary to popular belief, lack of resistance or protest does not necessarily constitute affirmative consent for sexual activity.

It is vital to keep in mind that incapacitated individuals cannot give affirmative consent. Individuals who do not have the physical or mental ability to make rational decisions lack the capacity to consent under California law. The same can be said about intoxication. A person under the influence of alcohol or drugs cannot give consent to sexual activity because of the impaired state of mind.

In addition, sexual activity with an individual under the age of 18 is never consensual because minors are considered incapable of giving consent.

Can Affirmative Consent Be Withdrawn?

Yes, affirmative consent can be withdrawn at any time. Once consent for sexual activity is withdrawn, the subsequent sexual activity is considered nonconsensual. If the other person continues to engage in sexual activity despite the lack of consent, they can face criminal penalties for sexual assault.

Once consent is withdrawn, all forms of sexual activity must stop. In addition, consent to one form of sexual activity does not automatically extend to other sexual acts. Sometimes, a person may not be able to withdraw consent during the sexual activity, which is why each party should check in periodically and make sure that all parties are comfortable with the activity.

How to Avoid Failure to Obtain Affirmative Consent

There are several ways individuals who engage in sexual activity can make sure that the activity is consensual before and during the act:

  • Ask your partner verbally if they give their consent (e.g., “Do you want to have sex with me?”).

  • Watch out for verbal and non-verbal cues from your partner indicating that they enjoy or do not enjoy the sexual activity (e.g., “Does it feel good?” and “Do you like it?”).

  • Make sure that your partner is actively participating in sexual activity.

  • Talk to your partner after the sexual act (e.g., “Did you like our sex?”).

  • A lack of resistance or silence does not constitute affirmative consent, which is why it is always best to check in and ask your partner.

  • Having sex with someone who is impaired by alcohol or drugs may not be consensual (intoxication negates the ability to give consent).

How Darryl A. Stallworth Law Office Can Help

If you are facing criminal charges for engaging in sexual activity with another person and consent becomes a contested issue, consider contacting a skilled criminal defense attorney. At Darryl A. Stallworth Law Office, I am ready to discuss the circumstances of your case and protect your freedom by building a strong defense strategy. Reach out to my law office in Oakland, California, to get a case review.