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Defining “Affirmative Consent” for Sexual Activity

The Law Office of Gregory N. Smith June 7, 2022

We’ve all been told and inherently know that in order to have sex with another person, you must and should have their consent. The problem lies in defining what consent means. Is mutual physical attraction enough without anyone saying “yes”? If someone says “yes,” what all does that consent apply to?

Affirmative consent should be obtained every step of the way, from when the contact first begins and at every additional step of the sexual encounter. This is the standard that will likely be observed in any criminal case.

If you are being investigated for sexual abuse because you failed to obtain consent from another person in or around St. Louis, Missouri, contact The Law Office of Gregory N. Smith. I am a criminal defense attorney dedicated to helping those in tough legal binds. With a background in forensic science, I bring additional skills to the table, along with an aggressive defense of your rights.

In addition to St. Louis, I proudly serve clients in East St. Louis, St. Charles, and throughout St. Louis County and Jefferson County.

Age of Consent in Missouri

Under Missouri statutes, anyone 17 can consent to sex with anyone 14 years of age or older, while 13-year-olds cannot consent to sex with anyone. Those aged 14, 15, and 16 cannot consent to sex with anyone who is more than four years older and in no case with anyone 21 years of age or older.

Though these age groups can give consent, consent is much more than just acquiescing or participating jointly in sexual activity. The words “yes” and “no” or other terms of agreement or disagreement are expected to be exchanged every step of the way to fulfill the normally-accepted definition of affirmative consent.

What Comprises Affirmative Consent?

In general terms, affirmative consent refers to a mutual agreement to participate in sexual activities. Consent cannot be assumed or based on past behavior. Even for couples who are married, sexual activity without consent is considered rape in all 50 states.

Without consent, any sexual activity – from touching someone intimately to actual penetration – can be considered sexual assault or worse. Consent is a legal defense so long as the alleged victim is 14 years or older. Missouri law, however, does not directly define consent, but case history and social standards have established certain guidelines.

Obtaining Affirmative Consent

First off, a person cannot give consent if they are underage, intoxicated, under the influence of drugs, or being threatened or coerced.

Unfortunately, nearly half of all sexual assault charges arise from situations in which the perpetrator has been drinking, the victim has been drinking, or both have. If you suspect your partner has been drinking – signs include slurred speech, difficulty standing or walking, or falling asleep – you should not pursue sexual advances. The other person is not capable of giving consent.

Outside of the circumstances where one or both partners are incapacitated and incapable of consent, there are several commonsense and time-honored guidelines to follow, including:

  • Asking permission every step of the way, not assuming that an initial “yes” or verbal consent will last throughout the sexual encounter

  • Letting your partner know that you are willing to stop at any time

  • Periodically confirming that consent is still being given; for instance, “Is this still okay?”

  • Having your partner agree to certain new activities freely and without pressure

As you can see, just obtaining an initial agreement or a nod of the head might not be enough to prove consent if matters go to trial. Also, don’t confuse physiological responses to consent. Experiencing an erection, arousal, or orgasm can occur even in the absence of consent.

Many accused of sexual assault will assume that just because the victim had a natural physiological response, they thereby gave their consent. “You know you enjoyed it?” is not an affirmative consent defense.

Experienced Representation You Can Trust

If you find yourself being accused of sexual abuse, you need to contact an experienced criminal defense attorney immediately, even before you face questions from police or prosecutors. Remember, anything you say can and will be used against you. Get legal representation from the beginning.

In the St. Louis area and surrounding communities, rely on The Law Office of Gregory N. Smith to fight for you and protect your rights. I have helped others facing criminal charges develop a strong defense strategy aimed at achieving the best possible result, and I'm ready to help you.