What Counts as Consent in 2017?

Human relationships are full of possibilities for miscommunication. We unintentionally misunderstand each other all the time about big and small things alike.

Unfortunately, this fact makes communications about the decision to have sexual contact with someone—especially someone you don’t already know well—a potentially complicated exchange.

For this reason, it’s vital to understand what constitutes consent to sex under the law and what does not. Failure to understand this could lead to unintentionally harming someone, and/or being charged with a sexual offense.

What does the law say?

Under Washington State law, “consent” means that “at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.” This means that the law requires a clear, uncoerced agreement before any sexual contact occurs. This agreement does not necessarily have to be verbal, but it does need to be unambiguous.

While rape convictions in the first and second degree in Washington require the perpetrator to have had sexual intercourse with someone “by forcible compulsion,” rape in the third degree requires only that the accused had sexual intercourse with someone “who did not consent.”

This mean the bar is lower for finding a person guilty for rape in the third degree—not only does rape mean physically forcing someone who is unwilling to have sex (possible hurting physically hurting them quite badly in the processes), it also means having sex without their consent, even if they have no resulting physical injuries at all.

What does that mean in real life?

Generally, consent should be:

• expressed outwardly through mutually understandable words or actions
• clear and unambiguous
• freely-given
• mutual
• given for every sexual activity, every time you have sex with someone

Do not assume someone has given his or her consent to sex because:

• you’ve had sex with and/or dated that person before
• they didn’t say no outright
• they were dressed in a provocative way
• they were being flirtatious
• they had a lot to drink and are acting in an uninhibited way

You might think that direct communication about sex takes some of the fun out of it. But treating others how you would like to be treated is not just a good idea, it can save you from a nightmarish scenario where a misunderstanding about sex leads to rape accusations, even if your intentions were not to harm another person.

We mutually agreed about sex, but afterward the story changed. What should I do?

If you do find yourself accused of a sexual offense, despite the fact you had the other person’s consent, there are some important things to remember:

• Hire the best attorney you can, as soon as you can (yes, you will need an attorney).
• Do not make a statement to police or campus authorities without a lawyer present (you have a constitutional right to remain silent!).
• Sever all forms of communication with your accuser, even if that person is close to you.
• If the incident occurred at a college or university, make sure both you and your attorney understand the process your school has for adjudicating sexual assault claims (even if you are not charged with a crime, your school may conduct a separate hearing).
• While wanting to confide in a trusted friend or family member is understandable, you must not discuss your case with anyone but your attorney. Others (even friends and family) can potentially be called as witnesses against you.
• Contact us at 206.826.1400 or solutions@marshalldefense.com.