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The Prosecution of Sexual Assault

A Series of the Sexual Violence Justice Institute

Memorandum: The Consent Defense

August 2006


Minnesota statute includes a clear definition of consent as it relates to criminal

sexual conduct. The Minnesota Courts have further clarified that consent requires an

affirmative act, and that the consent defense only applies under certain circumstances.

Consent Defined

I. Minnesota Statute – Definition of Consent

(a) 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.
(b) A person who is mentally incapacitated or physically helpless as defined
by this section cannot consent to a sexual act.
(c) Corroboration of the victim’s testimony is not required to show lack of
consent. Minn. Stat. § 609.341 (2004)

II. Consent is affirmative

As Minnesota Statute defines, and Baron Jones clarifies, consent to sexual contact is

an affirmative action. State v. Baron Jones, 2005 WL 1088525 (Minn. App. May 10,

2005). The victim in Baron Jones had been drinking alcohol; the defendant argued there

was insufficient evidence to show the victim was asleep and did not consent. Id. The

defendant argued the victim was awake because she smiled and originally resisted his

overtures. Id. The court rejects this argument, citing Minnesota statute requiring

affirmative words or actions necessary to show consent. Id. at 3.

In Mack, the victim invited the defendant to her apartment and allowed him to hold

her in her bed, after making it verbally clear over the phone that “she was not interested in

a relationship with him.” State v. Mack, 1999 WL 672680 at *1 (Minn. App. Aug. 31,

1999). The defendant persisted after the victim resisted his initial overtures of sexual

contact. Id. He then choked her, held her down, and threatened to kill her, at which point

she discontinued her resistance and “cooperated by taking off her clothes because she

took the threat seriously.” Id. The court, however, found sufficient evidence of the victim’s

non-consent because her actions were not a freely given agreement. Id. at *4.

III. Existence of a prior or current social relationship between the defendant and the victim

is not consent

In In re J.W.C., the defendant argued that because he and the complainant had

engaged in consensual sexual contact prior to the assault it was reasonable for him to

believe that he had consent for sexual contact. In re J.W.C., 2003 WL 21911179 at

*1 (Minn. App. Aug. 12, 2003). However, the Minnesota statute specifically excludes this

argument – a prior social relationship is not consent. Minn. Stat. § 609.341(4)(a). The

court found that not only was a prior relationship insufficient to support a consent defense,

but the victim testified that she had been scared, had asked the defendant to stop, the

defendant was much larger, the victim was credible, and her testimony was corroborated

by both witnesses and the her emotional state. In re J.W.C., 2003 WL 21911179 at *1. In

light of these facts, the court found sufficient evidence of force and coercion, and an

absence of any sign of consent. Id.

IV. Resistance is unnecessary to show lack of consent

Resistance to sexual contact is unnecessary to show lack of consent. Minn. Stat. §

609.341(a). In Mack, the victim cooperated with the defendant after he physically

assaulted her and threatened to kill her. 1999 WL 672680 at *1. The court clearly found

that consent does not mean that the victim “failed to resist a particular sexual act.” Id. at

**1, 4.

The Minnesota Supreme Court has found that the intentional creation of an

atmosphere of fear is sufficient to show force. The defendant in Carter drove the victim to

an isolated area and “although neither using actual force nor verbalized threats of force

intentionally created an atmosphere of fear which caused complainant to finally submit to

his sexual advances.” State v. Carter, 289 N.W.2d 454, 455 (Minn. 1979). This

argument was also utilized in Daby, where the defendant argued the element of coercion

or force was insufficiently proven because the victim had no bruises or physical evidence of

intercourse. State v. Daby, 359 N.W.2d 730, 733 (Minn. App. 1984). The court found

that the victim’s “prompt complaints and disheveled appearance” supported a finding of

force or coercion, and her description of the incident showed the defendant intentionally

created an atmosphere of fear. Id. A victim need not “sustain bruises, cuts or abrasions in

order to find that a sexual assault occurred.” State v. Alkire, 2005 WL 1018739 at *4.

V. Consent may be given and subsequently taken away

Consensual sexual contact becomes sexual assault when one participant withdraws

consent. State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1996). The court held that

“rape includes forcible continuance of initially-consensual sexual relations,” and refused to

instruct the jury otherwise. Id. The initial penetration of sexual intercourse is not the sole

focus of Minnesota statute. Rather, the ongoing act of sexual contact is criminalized when

consent is withdrawn. Id.

A victim’s testimony need not be corroborated to find that a sexual assault occurred.

State v. Alkire, 2005 WL 1018739 at *4 (Minn. App. May 3, 2005). See Minn. Stat. §

609.347 (1); State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977); State v. Heinzer, 347

N.W.2d 535, 538 (Minn. App. 1984). Although a victim’s testimony need not be

corroborated, the jury is not instructed on this fact. State v. Williams, 363 N.W.2d 911,

914 (Minn. App. 1985) (lack of corroboration is an evidentiary matter that should not be

included in jury instructions); see also State v. Erickson, 403 N.W.2d 281, 284 (Minn. App.


When is the consent defense inapplicable?

A defendant’s belief that consent was given is irrelevant if it was not given, and

there are several situations in which individuals are incapable of giving consent to sexual

contact. For example, minors are unable to give consent under many circumstances, such

as when the defendant is in a position of authority or has a significant relationship with the

minor. An adult who is physically helpless or mentally incapacitated is unable to give

consent. An adult who is mentally impaired may be found unable to consent. And finally,

when the defendant is the victim’s therapist, clergy, or physician, the victim is incapable of

giving consent.

VI. The defendant’s reasonable and good faith belief that consent was given is irrelevant in

a consent defense

Although some states allow a defense that “the defendant had a reasonable and

good faith belief that the victim consented,” Minnesota does not recognize this defense.

Mack, 1999 WL 672680 at *4; see People v. Burnham, 176 Cal.App.3d 1134, 222

Cal.Rptr. 630 (Cal.Ct.App. 1986). In Mack, the defendant requested jury instructions that

gave a defense to sexual assault if the jury found that the defendant reasonably believed

the victim consented. 1999 WL 672680 at *4. The court refused, holding that the state

has the burden of proving the victim did not consent and the defendant’s state of mind is

irrelevant to the consent defense. Id.

VII. Consent is not a defense to sexual contact with certain minors

Minnesota statute specifically provides that consent may not be raised as a defense

to alleged criminal sexual conduct when the victim is a minor (depending on the age of the

minor and/or the identity and position of the offender). Minn. Stat. §§ 609.342 – 609.345


In Albert Jones, consent was not an available defense to sexual contact with an

eleven year old. State v. Albert Jones, 2004 WL 1328032 at *2 (Minn. App. June 15,

2004). In applying the “rape shield” rule, the court determined it unnecessary to discuss

the victim’s possible prior sexual conduct as the consent defense was unavailable to the

defendant because of the victim’s age. Id. at 3.

Likewise, in Pannier the defendant teacher argued that his fifteen year old student

sought out a relationship with him, that she did not see him as an authority figure, and that

he did not use his position of authority to “get [the victim] to submit to having sex with

him.” State v. Pannier, 1999 WL 1216327 (Minn. App. Dec. 21, 1999). The court found

“the statute clearly states that consent of the minor is not a defense.” Id. at 7. Therefore

the court refused to entertain the defendant teacher’s consent defense, finding that “there

is no indication…that the position of authority must then be used to force the minor to

have sex.” Id.

Finally, the court held it unnecessary for the victim to perceive the defendant as an

authority figure; “the statute does not create a subjective standard for determining who is a

person in a position of authority.” Id.; see also State v Wright, 679 N.W.2d 186, 189

(Minn. App., 2004) (Mistake as to the complainant’s age or consent to the act by the

complainant is not a defense, in certain cases involving minors); State v. Douglas, 2003

WL 21448563 at *4 (Minn. App., June 24, 2003) (“Consent is not a defense to allegations

of criminal sexual conduct involving a victim under the age of thirteen.”)

VIII. Consent is not a defense when certain relationships exist between parties

Consent is not a defense when a certain kind of relationship exists between the

defendant and the victim. Minn. Stat. §§ 609.344, 609.345. For example, consent is not

a defense to sexual contact if the defendant is a psychotherapist and the victim is a

patient. Id. In Ohrtman, the defendant psychotherapist argued a distinction between

“consensual” and “non-consensual” hugs. State v. Ohrtman, 466 N.W.2d 1, 3 (Minn.

App. 1991). The court found actual consent was irrelevant when the touching was done

by a psychotherapist since “the equivalent of coercion was present as a matter of law

because of the counselor/counselee relationship.” Id.

Other relationships in which consent is not available as a defense include clergy

(when the victim is seeking spiritual counseling), defendants employed by correctional

facilities (when the victim is a resident or under supervision of the correctional system), and

defendants providing special transportation services (when the victim is using the service for

transport). Minn. Stat. §§ 609.344, 609.345.

IX. A person who is mentally incapacitated or physically helpless cannot consent; one who

is severely mentally impaired may also be found to be unable to consent.

Minnesota statute clearly states that a person who is mentally incapacitated or

physically helpless cannot consent to sexual contact. Minn. Stat. § 609.341. This statute

was utilized in Baron Jones, where the victim had consumed an “inordinate amount of

alcohol,” was described as “intoxicated and unaware of what was going on,” and had to

be assisted to bed. 2005 WL 1088525 at *1. When the victim’s friends later checked on

her they discovered the defendant on top of the victim. Id. at **1, 3. The victim was lying

on the bed “motionless,” with her eyes “pretty much just shut,” had to be shaken to wake

up, and made no movement to “cover her naked body.” Id. The appellate court found

sufficient evidence for a jury to “reasonably conclude that [the victim] was incapable of

giving consent.” Id. at 3. “The jury could’ve reasonably concluded [the victim] was

asleep, or otherwise unable to communicate nonconsent, and thus was physically

helpless.” Id.

The victim in Jarvis was found to be mentally incapacitated and therefore unable to

give consent after the defendant gave the victim what she believed were vitamins, but were

actually barbiturates. State v. Jarvis, 649 N.W.2d 186, 190 (Minn. App. 2002). The victim

described herself as “disoriented, groggy, and [unable] to get up or move her body.” Id. at

192. She experienced approximately six and one-half hours of amnesia, corroborated by

the physician who examined her, and had no recollection of photos that were taken of her.

Id. at 190, 192. The court found the elements of mental incapacity/physical helplessness

were met. Id. at 192.

When the defendant knows or has reason to know of the victim’s impairment, a

victim who is mentally impaired may be found to be unable to give consent to sexual

contact. Minn. Stat. §§ 609.342 - 609.345. Factors used by the court to determine the

extent of a victim’s mental impairment, and therefore their ability to consent include: I.Q.,

“adoptive living composite level,” a psychologist’s determination that the victim is

“mentally handicapped,” and the victim’s classification as a vulnerable adult. State v.

Willenbring, 454 N.W.2d 268, 2694 (Minn. App. 1990); See also State v. Holland, 1998

WL 202500 at *1 (Minn. App., April 28, 1998) (Factors considered by the court included

the victim’s I.Q. and social skills, her childlike behavior and demeanor on the witness

stand, expert testimony detailing the victim’s inability to give reasoned consent because of

her impaired intelligence, and the victim’s family’s testimony that she cannot say no and

has difficulty speaking when she is nervous or afraid.)

Discovery Issues in Consent Defense Cases

X. Defense Must Give Notice of Consent Defense and Witnesses

Rule 9 of the Minnesota Rules of Criminal Procedure regulates discovery as it

applies to the consent defense. Minn. R. Crim. P. 9.01-9.03. “It is within the district

court’s discretion to regulate discovery in a criminal case.” State v. Underhill, WL 165682

at *1 (Minn.App., May 18, 1993); State v. Moore, 493 N.W.2d 606, 609 (Minn.App.,


In Hernandez, the defendant violated Rule 9 discovery requirements by failing to

give notice of his consent defense until the day of the trial. State v. Hernandez, WL

203786 at **1, 4 (Minn. App. Apr. 13, 1999); Minn. R. Crim. P. 9.02. He argued that he

need not disclose the consent defense because the lack of consent is an essential element

the prosecution must prove, but the Minnesota Court of Appeals found that proving a

particular element differs from notice that consent will be used as a defense. Hernandez,

1999 WL 203786 at * 5. Since the defendant introduced additional facts to support his

consent defense, the Court of Appeals held that to provide for as complete discovery as

possible, the defendant “was required to disclose his consent defense and witnesses.

Minn. R. Crim. P. 9.02; Hernandez, 1999 WL 203786 at *6.


In conclusion, the Minnesota Statute which clearly defines consent has been

supplemented by significant case law defining the need for an affirmative act, the

particular circumstances under which a consent defense is applicable, and fact scenarios

under which a jury is willing to find a lack of consent.

Our thanks to Lindsay Brice, Hamline University School of Law

The Sexual Violence Justice Institute

161 St Anthony Ave Suite 1001
St Paul, MN 55103