What is Considered Consent in Texas?
Consent is the verbal or vocal permission that someone gives another person to commit a certain act (including actions concerning sexual encounters or contact). Consent is a very important aspect of sex-related criminal cases, especially in cases where an alleged offender is charged with sexual assault. In this article, we will discuss important laws and information concerning consent in Texas.
When Is Consent Unable to Be Given (Legally)?
In some cases, it is a possible defense that the supposed victim did consent to the sexual act; however, in other cases, even if the victim did consent, they are not legally able to give their consent. Specifically, the following individuals cannot give consent:
- Minor who are 16 years of age or younger
- If they are acting under duress or after compulsion
- Persons who are considered physically helpless or mentally incapacitated
Under Texas Penal Code § 22.011, a person commits sexual assault without the consent of the supposed victim if:
- The supposed offender uses physical force, violence, or coercion to force the other party to participate or submit.
- The supposed offender uses the threat of physical violence, force, or harm and the other party believes they are capable of such an act.
- The other person is unconscious or physically unable to resist and has not consented.
- The other person has not provided consent, and the supposed offender knows the other party is not aware that a sexual assault is occurring.
- The other person has been intentionally impaired by the supposed offender (without their knowledge or consent) and does not have the power to control or assess their actions.
- The supposed offender is a public servant and uses their position to coerce the other party to participate or submit.
- The supposed offender is a mental health service provider or health care service provider and uses their patient’s emotional dependency on them to compel them to participate or submit.
- The supposed offender is a clergyman and uses their position as a spiritual advisor or the other party’s emotional dependency on them to compel the other party to participate or submit.
- The supposed offender is an employee of the establishment where the other party is a resident, excluding instances where the employee and resident are formally or informally married to one another (see Chapter 2, Texas Family Code).
- The supposed offender is a healthcare provider and uses human reproductive material from a donor without their express consent during the course of performing an assisted reproduction procedure.
- The supposed offender is a tutor or coach who uses their influence, power, or position to compel the other party to participate or submit.
- The supposed offender is a caregiver that was hired to assist the other person with daily tasks and activities and uses that position or the other person’s dependency on them to compel the other party to participate or consent.
As it relates to the aforementioned consent law, here are the legal definitions concerning how certain positions/individuals are defined.
- Healthcare service providers include the following persons: licensed physicians, chiropractors, physical therapists, physician’s assistants, and registered, vocational, or advanced practice nurses.
- Mental health services providers include a licensed or unlicensed person who performs mental health services including (but not limited to) social workers, counselors, family therapists, clergymen, chemical dependency counselors, psychologists, psychiatrists, and special officers for mental health assignments.
- Employees of a facility can include any person who provides a facility with services for compensation, including contract laborers and employees defined in Texas Health & Safety Code § 250.001.
How Does Alcohol Affect Consent?
As outlined in the law, you cannot have intercourse with a person who is unconscious or too drunk to give consent. However, cases can become complicated if the person gives consent while they are “blacked out.” Blackouts can cause memory loss, and the person may be walking and talking but not fully conscious of their actions. However, someone who is blackout drunk may give consent and the other party is unaware that the consenting party is blacked out, which can complicate the case and consent issues.
Get Legal Help
Attorney Peter Barrett is known for providing clients with high-quality legal counsel. Once you retain Peter Barrett, you can expect to receive personalized attention, a customized defense strategy, and a reliable advocate. With over 25 years of experience, our sex crimes attorney is equipped to help you work to mitigate the penalties or get a case dismissal if you have been charged with:
- Sexual assault
- Child sexual assault
- Child pornography
- Statutory rape
- Indecency with a child
- Continuous sexual abuse of a child
- Other indictable offenses related to having intercourse without consent or other sex-related crimes