Discussing the Role Consent Plays in Sex Crime Charges

Discussing the role consent plays in sex crime charges is important for a variety of reasons. Police, prosecutors, and defense attorneys often battle over the issue of consent, as it determines criminal culpability in the vast majority of sex crime cases in Illinois. The issue is also often critical during the different stages of the legal process following sex crime charges, including investigation, depositions, and trial. Ultimately, understanding the legal concept of consent is essential to anyone involved in any capacity with sex crime charges.

Understanding Consent

When discussing the role consent plays in sex crime charges, it helps to first understand how consent is defined under Illinois law.

A Definition of Consent

Illinois has codified certain aspects of consent to sexual activity. According to Illinois law, consent to sexual activity means a willing agreement to sexual activity. The following, however, are not considered to be consent to sexual activity:

  • A lack of physical protest
  • A lack of verbal protest
  • A person’s manner of dressing.

The statute goes on to note that consent that was previously given freely may not be considered consent to sexual activity once the person who gives the consent withdraws the consent. For example, if an individual consents to sex but decides to withdraw this consent during intercourse, the consent initially given is no longer valid. Similarly, consent to sexual activity on one occasion does not automatically cover sexual activity in the future.

Age and Consent

In every state of the nation, minors are not able to give legal consent to sex, although some states have a “Romeo and Juliet” law on the books. A Romeo and Juliet law provides an exception for certain minors (usually 14 years old or older) that allows them to consent to sexual activity with a person no more than three years their senior. Illinois does not have a Romeo and Juliet statute.

In Illinois, minors of age 17 can legally consent to sexual activity with others their age or older. This exception does not, however, apply when the 17-year-old has sex with a person in a position of authority over them, such as a . . .

  • Coach
  • Counselor
  • Teacher
  • Supervisor.

For sexual activity with persons in a position of authority, the age of consent is 18 years old.

Age of consent laws relating to sexual activity are strict in Illinois. Violation of these laws can lead to significant time behind bars, as well as fines and permanent registry as a sex offender. For these reasons, anyone facing charges related to consent laws should hire an experienced criminal defense attorney to fight against these charges.

Capacity and Consent

Persons who have mental or physical disabilities may not have the capacity to consent to sexual activity. For example, various conditions of the mind prevent their sufferers from fully grasping what is occurring to them. In some cases, the victim may even be unconscious. In others, a physical condition, such as quadriplegia, may prevent a person from perceiving a sexual assault.

With that being said, confusing cases often arise within these contexts due to misunderstandings, leading to criminal justice problems for caregivers or healthcare providers.

Drugs, Alcohol, and Consent

Both drugs and alcohol can render a person’s consent invalid. The tricky aspect of consent cases involving these substances is that they are both regularly consumed before, during, and after sexual activity. At bars, complete strangers drink until drunk and then decide to have sexual intercourse.

In Illinois, a recent change in the criminal laws controlling consent, alcohol, and sex makes it easier for the state to bring charges in sexual situations involving alcohol. Previously, the state would typically forgo prosecution in sex crimes cases if the alleged victim had voluntarily taken drugs or alcohol to the state of drunkenness.

Now, however, a person can be charged with a sex crime if they knew or should have known that the alleged victim was drunk or under the influence of drugs to the extent that they could not give consent.

Defining Sexual Activity

Understanding the role consent plays in sex crimes requires more than knowing the definition of consent. It also requires identifying those acts that are specifically considered to be criminal sexual activity.

The Illinois Criminal Code describes sexual conduct as any knowing touching or fondling of the genitals, anus, or breasts of adults for sexual gratification, as well as semen transmission. However, when the victim is a child, the definition broadens to include the touching or fondling of any body part of the child for sexual arousal or gratification.

Hence, according to this definition, the following acts would be considered sexual conduct and would need the legal consent of both parties:

  • Sexual intercourse
  • Oral sex
  • Fondling
  • Groping
  • Rubbing against
  • Masturbation
  • Ejaculation
  • Kissing and licking.

Sexting is another common occurrence. It involves the sending of sexually explicit images electronically. Sexting is not typically considered sexual conduct, but there are sexting laws that make it illegal for any person under the age of 18 to sext.

Prohibited Consensual Sexual Activities

In Illinois, consent has no force in certain sexual activities because these activities are against Illinois law. While sodomy is still illegal in some states, in Illinois, it is legal. In fact, Illinois became the first state in the country to allow consenting adults to legally engage in sodomy.

Various other sexual acts, however, are illegal, regardless of consent, including sexual conduct between consenting adults using animals and sexual acts between consenting adults in public places. Consensually exposing oneself to another in public places is also a crime.

Aggressive Criminal Defense Against Sex Crime Charges

If you are being accused of committing a sex crime, you are strongly advised to reach out to an experienced sex charges defense attorney for representation as soon as possible. At Wolfe & Stec, we vigorously defend our clients from sex crime charges and fight to get charges reduced, dismissed, or thrown out. We also work to protect your record and your future.

Call 630-305-0222 to schedule your consultation with an experienced criminal defense team today.

Attorney Marc Wolfe

Marc Wolfe has been representing clients in criminal matters in Chicago and the entire State of Illinois for over 30 years. Mr. Wolfe has tried over 300 cases to verdict and represents clients facing investigation or prosecution for a broad range of state and federal criminal offenses, including murder, embezzlement, sexual abuse, drugs, marijuana and white collar crimes. [ Attorney Bio ]