In Virginia, rape and sexual battery are defined as “sexual intercourse or abuse, respectively, of a complaining witness against their will.” The state does not require “freely given consent” or “affirmative consent” in its definition of rape. At the age of 18, a person is completely able to consent to sexual acts in the state of Virginia. Persons of younger ages may be considered “consenting” under certain circumstances, but adults are still criminally liable for virtually any sexual contact with someone under 18.
What Does Capacity to Consent Mean?
“Capacity" refers to one’s ability to use and understand information to make or communicate a decision. A person lacks the capacity to consent to sexual acts if their mind is impaired or disturbed in some way. Below are a few instances where a person’s capacity to consent might come into play.
- People 18 years or older who participate in a sex act with a child 15 years or older can be charged with a misdemeanor if there is no other complicating criminal aspect of the encounter. It is a felony offense if a child who is 13 years old consents to sexual intercourse with a victim 3 or more years younger than the accused.
- Developmental disability and/or mental incapacity can also impact a person’s ability to provide consent. Mental incapacity, under Virginia consent laws, refers to the condition of the accuser at the time of the offense. Typically, rape in these circumstances is determined by assessing the complaining witness’s understanding of the nature or consequences of the sexual act involved and whether or not the accused knew or should have known of such consequences.
- Mental incapacity extends to intoxication as well. A person is unable to give their consent if their level of intoxication is beyond reduced inhibition and has reached a point where the complaining witness does not comprehend the nature or consequences of the sexual act. Consciousness also impacts a person’s ability to provide consent because they are deemed physically helpless. A person is guilty of rape if they perform a sexual act with a complaining witness by using their physical helplessness against them.
Is Consent a Legal Defense?
Consent can be a legal defense against rape charges. The person accused of rape can provide evidence, including statements from the accuser, to prove consent. They can also testify about observations or perceptions that might suggest the accuser’s consent.
Do you have more questions about consent laws in Virginia? Call (540) 827-4446 to speak with our Fredericksburg criminal defense attorney today!