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How Does Minnesota Define Sexual Consent?

There are serious consequences that come with an arrest and conviction for sex crimes in Minnesota. In addition to the stigma associated with these offenses, a conviction could also bring about lengthy prison terms or costly fines. Dealing with the challenges of a sex crime arrest—even if the accusations are baseless—can be devastating. Central to most sex offenses is the concept of consent. A sexual act becomes criminal when one of the parties involved does not consent to it. In general, It involves willfully agreeing to take part in the interaction.

If you have been arrested for a sex offense in Minnesota, the issue of consent could be an important part of your defense. If you believe the other party consented to the encounter, It could be the primary issue in your case moving forward. Reach out to the attorneys of Gerald Miller to discuss your options moving forward.

How is Consent Defined by Minnesota Statute?

While the concept of consent—that a person must affirmatively agree to take part in any sexual encounter—is straightforward, state law provides its own definition of the concept. The legal definition of it is found at Minnesota Statutes Section 609.341. According to the statute:

“Consent” means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.

That statute goes on to qualify the definition further. According to the law, A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act. Finally, the statute addresses what is required to establish the lack of consent in a criminal trial. While some jurisdictions have previously required some form of corroboration to prove a lack of consent, Minnesota law makes clear corroborating testimony is not necessary the establish the lack of consent in a criminal trial.

There is nuance when it comes to issues of consent. Specifically, a person’s silence does not mean that they do not object to the encounter. A reporting witness can pursue criminal charges related to a sexual assault even if they did not physically resist at the time. When considering issues of consent, silence does not necessarily equal consent either.

Matters of consent can be complicated during a criminal trial. In many cases, both the accused and the reporting witness will disagree entirely on whether or not there was consent. The attorneys of Gerald Miller could make the case for consent when interviewing witnesses during trial or while pursuing a motion to dismiss.


The Withdrawal of Consent

Many people think of consent to a sexual act as a yes or no proposition. In reality, it is an ongoing agreement that must last the length of a sexual encounter. That is why the statute makes it clear that consent is not only a freely given agreement to take part in a sexual encounter, but the agreement must be present as well.

This is because it is possible for any party to a sexual encounter to withdraw their consent at any point. It makes no difference if the encounter was initially consensual, consent can be withdrawn without warning or conditions.


When Consent is not a Defense

It is important to understand that while consent is one of the strongest defenses to many allegations of sexual assault, there are times when the presence of consent is no defense at all. This is because the law finds certain individuals unable to consent to sexual contact. For that reason, no sign or indication of consent will be accepted by the court as the alleged victim was not in a position to consent to sexual contact under an circumstances. Some of the cases where consent cannot be freely given include:

  • Minors below the age of consent
  • Sexual acts perpetrated by correctional officers, clergy, or therapists
  • Alleged victims physically unable to resist
  • Alleged victims mentally unable to consent

The key element in these cases is whether or not a reporting witness has the power to consent at all. If the courts find that an individual is unable to consent, a judge will not consider consent as a defense.

The most common situation where this issue arises involves minors. Minors are considered to lack to mental capacity to consent to sexual encounters. The same is true for adults that lack the mental capacity to make these decisions. Adults that are physically unable to resist—including those too intoxicated to object to a sexual encounter—also qualify.

Finally, this issue can also come up when it involves sexual acts committed by individuals in power. In the case of correctional officers, a prisoner might feel they have little choice but to agree to the sex act proposed by the guard.


Defenses to Sex Offense Charges when Consent is not Present in Minneapolis

There are some limited circumstances where a viable defense exists even when a defendant acknowledges that the standard definition of consent has not been met. While these defenses are rarely applicable, it is important to understand them in case they apply in your situation.

Minnesota recognizes a number of exceptions including marriage, so-called “Romeo and Juliet” laws, and the defense of the mistake of age. Before you assume these defenses might be viable in your case, it is vital that you seek out legal counsel.

The attorneys of Gerald Miller understand the circumstances where these defenses might apply. From evaluating the facts of your case to advising you on what the law holds, we are prepared to assist you in your defense every step of the way. Reach out today to learn more about your options.


Romeo and Juliet Laws

Age of consent laws do not apply to everyone equally. Minnesota has adopted something known as a “Romeo and Juliet” law that applies statutory rape penalties differently depending on age differences and prior romantic relationships.

Under the law, a person under the age of 13 can only consent to a sexual encounter with an individual that is within 36 months of their age. For 13, 14, and 15 year olds, this defense is only viable for individuals within 24 months of their age.

Typically, the age of consent is 16 in Minnesota. However, these individuals do not have free range to have a sexual relationship with any adult. For 16 and 17 year olds, consent is not a defense for anyone in a position of authority over the minor. For example, a sexual encounter between 15 year old and a 16 year old is not a crime. The same is not true of an adult that is 17 and a 15 year old teenager.



There is also an exception that applies between spouses when it comes to the age of consent. Under certain circumstances, the law allows individuals to marry that would fall outside of the exemptions provided in Romeo and Juliet laws. It is important to note that this defense does not apply in cases where the couple were living apart or separated.


Mistake of Age

It is common for individuals accused of sex with a minor to allege they were mistaken regarding the minor’s age. In limited circumstances, a mistake of age could be a viable defense. In order for this defense to be valid, four elements must be present:

  • The minor is at least 13 but younger than 16
  • The defendant believed the child was older than 16
  • The defendant’s belief was reasonable, and
  • The defendant is no more than 10 years the minor’s elder


Discuss Your Criminal Charges with Gerald Miller Today in Minneapolis

There are few criminal offenses that are prosecuted more aggressively than sex offenses. If you have been charged with a sex crime, the question of consent could play a major part in your case.

The attorneys of Gerald Miller understand how consent is a major part of many sex offense charges. We are prepared to aggressively pursue your defense in order to secure a fair outcome. Call right away to schedule your free consultation.

About the author

Gerald Miller

Gerald Miller is a top-notch and experienced DWI/DUI lawyer at Gerald Miller P.A. in Minneapolis, MN. He has more than 35 years of experience in Criminal Defense practice. He has also been a mentor to numerous DUI/DWI defense attorneys.

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