Sexual Relationships 
Sexual Health 
I have never stopped in the midst of passion and asked my partner, “Do I have your permission to place my penis in your vagina?” If I had ever done that, I don’t know if my partner would have laughed or gotten upset with me for spoiling the spontaneity of our passion. I’ll never know, because I will never ask that question.
“Consent” to having sex is how you defend yourself if you are later accused of sexual assaulting your partner. “Sexual assault” and “consent” have been defined by the legislature of each state and those definitions change very, very infrequently. The law on this subject varies, to a small degree, from state to state. Since I practice law in Florida, I will use Florida law as an example.
“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object, if done without consent. Florida Statute §794.011 (2019). Kissing her on the lips or fondling her boobs is not covered by the sexual assault statute (if done without consent, it is illegal, but it is not prosecuted as a sexual assault. However, other states DO treat fondling of the breasts as sexual assault.)
“Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. Consent can be given explicitly, e.g., by saying, “Yes, you may place your penis inside my vagina,” or words to that effect.
Consent can also be inferred from the circumstances without ever having been explicitly discussed. If I take my girlfriend out to dinner, we have a nice time, we engage in some passionate making out, I invite her to go to my apartment, we go into the bedroom, she removes her clothes, and gets into my bed, her behavior indicates a willingness to engage in sex even those she never said words to that effect. However, consent cannot be implied simply from a victim’s failure to resist.
Even if consent is given, it is not valid if the victim has a condition which renders her “mentally defective;” this mean that she has a mental disease or defect which renders her temporarily or permanently incapable of appraising the nature of her conduct.
Consent is not valid if the victim is “mentally incapacitated,” or temporarily incapable of appraising or controlling their own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without her consent or due to any other act committed upon that person without her consent.
A victim will not be deemed to have given implied consent if she is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act. If my girlfriend is drunk, takes off her clothes, crawls into my bed, and passes out, I do NOT have her consent to jump on her bones and have sex while she is passed out.
Consent is also not valid, even if given explicitly, if given under threats of future physical harm or punishment, kidnapping, false imprisonment or forcible confinement, or extortion. Holding a gun to her head and forcing her to say, “Please fuck me” does not mean that I have consent for sexual intercourse.
When allegations of a sexual assault are made, the existence of a prior relationship is extremely relevant to the prosecution. Most sexual assault cases can be classified into three categories: stranger assaults, new relationship assaults, and established relationship assaults.
When a sexual assault is committed by a stranger, the issue of consent is somewhat less likely to arise. If the circumstances suggest that a woman had no reason to consent to sex with a stranger, then claims of consent are typically received with considerable skepticism. Also, there is rarely a motive to make a false rape claim against a stranger.
With a new or developing relationship, consent is very much an issue. A new couple does not have an established history whereby the male can reasonably assume consent. The fact that a girl, on a second date, lets you put your hand under her shirt and feel her boobs does NOT mean that she has also consented to intercourse. “She never said no,” is not enough to constitute consent. If she puts her hand in the guys pants and starts giving him a hand job, that doesn’t mean that she has consent to vaginal penetration. However, if she pulls down her panties, that makes it more likely that she has consented either to receiving oral sex or to having intercourse. This is getting into an area where a juror might not be convinced that she did not consent to intercourse.
With a new or developing relationship, a girl may consent and later regret her decision. This scenario happens often enough that a swearing match about whether she consented, with no further proof of a forcible rape, is not likely to result in a conviction for sexual assault. However, if the swearing match is accompanied by physical wounds consistent with a struggle, and immediate reporting of the allegations, conviction becomes more likely.
When the victim and perpetrator have an established relationship, things become much more difficult. I live with my girlfriend. I look at her and say, “Wanna get in bed?” and she gets up and walks into the bedroom. She knows what I meant when I asked that question and I know what she meant when she walked into the bedroom. Neither of us ever said, “Wanna have intercourse?” This is simply how couples behave in long term relationships.
Later, she gets mad at me and claims that I assaulted her. She claims that she didn’t try to resist because I am twice her size and resistance would be pointless. I admit that she never explicitly agreed to have sex but that she walked into the bedroom when I asked if she wanted to get in bed. If you are a juror and all that you hear is her version of the facts and my version of the facts, how do you decide which is true?
Usually, cases based on these kinds of conflicting testimony are resolved by reference to the burden of proof. In a criminal case, the State has the burden of proving the defendant’s guilt beyond all reasonable doubt. That means that the victim’s testimony must be so obviously true that only a fool would believe the defendant’s explanation.
Such cases are usually not prosecuted as rape cases because they are very rarely won. Instead, the prosecutor will often plea bargain: if the defendant will plead guilty to a reduced charge, such as simple battery, the sexual battery charge will be dropped.
I hope that explains some of the basics of consent for you. If you have questions, feel free to PM me.
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