How Can You Prove Consent in a Sexual Assault Defense Case?

Proof of consent has always been a major problem for both the prosecution and the defense in sexual assault cases. Unlike most crimes, much of the typical forensic evidence for sexual assault cannot prove or disprove consent. And it is very unlikely that there will be eyewitnesses. Thus, both the state and the defendant have to rely on circumstantial evidence and sworn statements.

When officials and jurors have to decide based on this evidence, it opens the door for bias. How do they think people behave in relationships—or should behave? In the past, courts and jurors were often biased against anyone reporting sexual abuse, especially women. However, society’s pendulum has swung the other way, for better and worse. Some defendants fear that an accusation itself is enough to convict them.

A defendant who fights these charges has a strong chance of success in Texas. From 2014 to 2018, less than half of sexual assault charges brought to trial in Texas resulted in a conviction, and 36% were dismissed. (Source, fig. 6.) There is hope for anyone who faces a sexual assault charge if they get strong, sympathetic defense counsel immediately.

The Standard of Consent

The state of Texas sets out definitions of non-consensual situations for sexual assault:

• Compelling someone “to submit or participate by the use of physical force, violence, or coercion”
• By “threatening to use force or violence against the other person … or to cause harm … and the other person believes that the actor has the present ability to execute the threat”
• “Threatening to use force or violence against any person,” where the assault victim believes they could do so
• Lack of consent where “the actor knows the other person is unconscious or physically unable to resist”
• When “the actor knows that as a result of mental disease or defect,” the other person cannot understand or resist the act
• Lack of consent where the person is unaware that the sexual assault is occurring
• Intentional impairment of another person’s abilities by administration of a substance (such as drugs or alcohol) without their knowledge
• Abuse of position by health care providers, clergy members, caregivers, coaches, and tutors

See Tex. Pen. Code. § 22.011(b). And, of course, no one under the age of consent can legally give it. In Texas, the age of consent is 17 unless the alleged victim is at least 14 and the accused is within 3 years of their age. See § 22.011(c), (e).

There is a difference between the concepts of “consent” and “assent.” “Consent” is affirmative and ongoing; it may be withdrawn at any time. On the other hand, someone who simply “assents” may be acting out of fear; they may also not have the legal capacity for consent.

Evidence and the Burden of Proof

At trial, the prosecution must prove that the act was nonconsensual “beyond a reasonable doubt.” This is the standard for most criminal trials in Texas and elsewhere, and it is the hardest burden to meet, especially in sexual assault cases.

Both the prosecution and the defense must provide the evidence to make their case. An experienced criminal defense attorney will review all the relevant material, including any available:

• Photos, videos, or surveillance tapes of the persons involved
• Documents of the couple’s relationship, such as text messages, social media interactions, and email
• Witness accounts from around the time in question (such as other guests at a party or neighboring apartment dwellers)

The attorney will also review the prosecution’s evidence and analyze its weaknesses. For example, if an accuser reports injuries, are there medical reports? Are the accuser’s statements consistent? If the accuser claims they were unconscious or drugged, can they present evidence of this? If the accuser claims they shouted, was anyone nearby who heard them?

The defense needs to leave the jury with a reasonable doubt, no more and no less, about the question of consent. The law leaves it to the jury to decide on the credibility of an accuser and a defendant. A defense attorney can present evidence of:

• Motives to fabricate a story
• Previous fabrications or unfounded statements by the accuser
• An ongoing or previous sexual relationship between the parties

It is not necessary to prove consent itself—only to make the jury doubt that it did not exist.

Compassionate and Fierce Defense

This kind of defense is difficult, delicate work. Cross-examining an accuser to raise doubts while remaining sympathetic to the jury is a job for experienced litigators. Attorney Shannon Drehner, a former prosecutor in Texas and Florida, has worked on dozens of jury trials and hundreds of felony cases. She understands the pressures of proving a case, and she knows how to fight to win.

If you are facing sexual assault charges or allegations of crimes against minors, you are facing an uphill battle, and you need urgent help. Call 832-626-0063 today to schedule a free initial case review with our Houston office.