Consent is agreeing, or giving permission, to do something. In Medicine, a physician and patient discuss an upcoming surgery, so the patient can give informed consent to proceed. The patient knows exactly what the surgery will entail and can make an informed decision to agree to the procedure.
Consent also plays a role in participating in sexual activity. When a person has the capacity to know exactly what they’re agreeing to, they can make an informed decision to participate, and give affirmative consent. This consent can be withdrawn at any time.
What is the Legal Role of Consent?
The legal role of consent is to protect those in vulnerable situations, and to hold those who disregard another person’s decision to consent accountable. This can be outlined in Missouri’s Definition of sexual abuse: MO 566.100.
1. A person commits the offense of sexual abuse in the first degree if he or she subjects another person to sexual contact when that person is
- Incapable of consent, or lacks the capacity to consent, or
- By the use of forcible compulsion.
Incapacitation and Consent
When someone is incapacitated, they do not have the physical and/or mental ability to make informed, rational judgements. Meaning, they cannot consent to sexual activity. This can include:
- Being under the influence of drugs or alcohol.
- Being asleep or unconscious.
- Having an intellectual or other disability that prevents the person from making an informed judgement.
Forcible compulsion is to compel by force. This can be a physical force, or a threat of one. Forcible compulsion can include:
- Fear of immediate or future death.
- Fear of personal injury to one’s self or another person.
- Fear that the person or another person will immediately or in the future be kidnapped.
Additionally, Missouri defines forcible compulsion to include the use of a substance administered without a victim’s knowledge or which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse.
Who Can Not Give Consent?
Along with those who are incapacitated, there are certain groups of people that are legally unable to give consent to sexual activity.
Those who are Underage
The age of consent is when a person is deemed legally able to agree to sexual activity. In Missouri, the age of consent is 17 years old, and in Kansas, it is 16 years old.
Missouri has additional minor consent laws:
- A person who is 13 years old or younger cannot consent to sex with anyone. (566.067)
- Persons 14, 15, and 16 years old cannot consent to sex with a person who is more than 4 years or older. (566.034)
- A person who is 17 years old can consent with anyone 14 years or older. (566.134)
Positions of Power within Relationships
Even if the sexual act was consensual, there are certain relationships that can never be. In Missouri, this includes:
- An employee of a school with a student (566.086)
- An employee of a nursing facility with a resident or vulnerable person (566.115)
- An employee of any jail, prison, or correctional facility with a prisoner/offender (566.145)
In all of these situations, one party has clear power and authority over the other. Even if an of-age-student has consensual relations with a teacher, it is still illegal. The opportunity for those actions should never arise due to the nature of the relationship.