What Does Lack of Consent Mean Under Sex Offense Laws?
A person cannot consent to a sexual act regardless of age if someone else uses threats, intimidation, or physical force to facilitate the act. A lack of consent also exists if the victim has a physical disability or impaired mental capacity.
Anyone under 13 can’t legally consent to sexual activity. A person between 14 and 17 might be able to give their consent to sexual contact. However, this is under limited circumstances.
Non-Consensual Sexual Activity Under Virginia Laws
It is illegal to engage in non-consensual sexual activity, such as rape or forcible sodomy. Lack of consent exists if evidence shows a person accomplishes sexual conduct by intimidating, threatening, or physically forcing someone into it.
Two types of incapacity prevent someone from consenting to a sexual act. Physical incapacity is when a victim can’t realize what’s happening or cannot vocally or physically resist the advances. For example, someone can’t consent when they’re asleep or paralyzed.
Mental incapacity can be permanent or temporary. It involves a person’s inability to provide consent because of a developmental disorder that affects their cognitive abilities preventing them from understanding the consequences of the sexual act, or because their mental capacities are hindered due to alcohol or drugs.
Age Doesn’t Matter If There Is No Consent
A person must consent to have intercourse with another person for the act to be legal. Age isn’t a factor in determining whether a crime occurred if the victim didn’t provide their consent before the sexual activity.
Legal Consent Doesn’t Exist for Children Under 13
A child under 13 can’t give consent to a sexual act in Virginia. That means no one can legally have sex with someone under 13 without committing a criminal offense.
The penalty for someone engaging in sexual activity with someone 12 or younger is at least five years in prison. If the offender is an adult, sentencing could result in a mandatory prison term for life. They must also register as a sex offender.
Consent Is Possible for Children Between 13 and 17
Sometimes, children between 13 and 17 can give consent to sexual acts. Virginia law explains the specifics of these circumstances and what constitutes a crime:
- It is a felony for any person with carnal knowledge of a child between 13 and 15 to engage in sexual activity without force.
- If a person carnally knows a child between 13 and 15 who consents to sexual intercourse but is at least three years younger than the perpetrator, the offense is a felony. The crime drops to a misdemeanor if the child is less than three years younger than the perpetrator.
- No child under 13 can give consent. Carnal knowledge includes anal intercourse, sexual intercourse, anilingus, cunnilingus, fellatio, and inanimate and animate object sexual penetration.
The Romeo and Juliet Exemption
In Virginia, the Romeo and Juliet exemption allows consensual sex between minors who are less than three years apart in age. However, there are limitations. Sexual conduct is illegal, but the charge decreases from a felony to a misdemeanor. The penalty is less severe, with lower fines and reduced jail time.
Defend Yourself Against Sex Crime Charges
You deserve quality legal representation after an arrest for a sex crime based on a lack of consent. Multiple defenses are available depending on the circumstances.
Whitestone Young, PC, has over 40 years of experience protecting our clients after an arrest or charge for a sexual offense in Fairfax. We will review your case and advise you of the options to fight the charges against you.
Learn more about how we can help by calling us at 703-591-0200 for a free consultation.
