Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
August 2006
Introduction
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
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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
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,
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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
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
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.
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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
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
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.
1987).
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
consent. An adult who is mentally impaired may be found unable to consent. And finally,
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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
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
(2004).
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
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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
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
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
App. 1991). The court found actual consent was irrelevant when the touching was done
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by a psychotherapist since “the equivalent of coercion was present as a matter of law
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
IX. A person who is mentally incapacitated or physically helpless cannot consent; one who
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
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
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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
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.,
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
applies to the consent defense. Minn. R. Crim. P. 9.01-9.03. “It is within the district
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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.,
1992).
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.
Conclusion
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