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What constitutes sexual consent in Colorado

Rohn K. Robbins/Special to the Daily

The Kobe Bryant case and the recent Air Force Academy scandal have put the issue of sexual consent front and center on the radar screen of public interest. In simple terms, when does “yes” mean “yes,” when does “no” mean “no,” and when does “yes” sometimes mean “no”?

To answer these questions, understanding the legal definition of the word “consent” itself is essential. Fundamentally, “consent” means a concurrence of wills. It can be defined, too, as voluntarily yielding to the proposition of another.

On the legal playing field, it implies that the person or persons consenting, at the time of giving the consent, are in possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another.

Further, consent must be unclouded and unencumbered by fraud, duress or sometimes even mistake.

In sexual matters, the consent must be continuing. There must be a series of little “yeses” along the route to intimacy and if along the line the chain is broken, if the consent is withdrawn, then to go further is to proceed at peril.

Key to understanding is that the consent must be made by one in possession and exercise of sufficient mental capacity. Simply, a person under actual or legal incapacity cannot give “knowing” consent. A severely retarded or psychotic person may be functioning under sufficient mental incapacity to be unable to give consent.

Similarly, a person under the influence of drugs or alcohol who is so impaired as to be incapable of knowingly consenting (that is consciously, willfully and intentionally consenting) lacks the requisite mental state of “intelligently” giving his or her consent.

Legal incapacity is constituted of a fiction that certain persons, by virtue of their status, lack the requisite mental capacity to give informed or knowing consent.

The archetypical example is a minor. By application of this legal fiction, minors are presumed to be incapable of giving knowing, intelligent consent. Thus, our laws pertaining to statutory rape. Statutory rape (or rape as expressly defined by statutory provision) is the unlawful sexual intercourse with a female under the age of consent.

In statutory rape, the government is not required to prove that the intercourse was without consent of the female because she is conclusively presumed, by reason of her tender age alone, to be incapable of consent.

In this state, as in many others, statutory rape is defined as the act of sexual intercourse between an unwed female under the age of 18 with a male over the age of 18.

What then of “mental capacity”? The term contemplates the ability to understand the nature and effect of the act in which the person is engaged. It is comprised, in part, in understanding the consequences of one’s acts. Mental capacity is the measure of intelligence, understanding, memory and judgment relative to a particular act or transaction as will enable the person to understand the nature of his or her conduct.

In the context of the preceding, let’s then examine what constitutes rape. Rape is defined in its simplest terms as unlawful sexual intercourse with a female without her consent. More expansively, it can be defined as the act of sexual intercourse committed by a man with a woman not his wife (although in at least some jurisdictions case law now supports that a man can in some circumstances rape his wife) and without her consent, committed when the woman’s resistance is overcome by force or fear, or under other prohibitive conditions, such as where she is rendered insensate by alcohol or is below the age of consent.

Under the Model Penal Code, a male commits rape if he has sexual intercourse with a female not his wife if: 1)he compels her to submit by force or threat; or 2) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, alcohol, intoxicants or other means for the purpose of preventing resistance; or 3) the female is unconscious; or 4) the female is a minor.

Recent case law clearly holds that a man may be found to have committed rape not only if he is the precipitating agency of a woman’s intoxication, but if he takes advantage of her voluntary intoxication if she is so impaired as to be incapable of giving her knowing consent.

Case law supports, too, that a man may be guilty of rape where he has sexual relations with a women under certain physical impairments such as where a woman is rendered helpless because of an epileptic seizure or other similar condition.

As used in the law of rape, “consent” means consent of the will, and submission under the influence of fear or terror cannot amount to real consent. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.

As alluded to above, the consent must be continuing. Where foreplay turns to sex and the woman is a willing participant to the former but not the latter, her partner must simply stop.

When a woman says “no” at any point, it must be taken as “no.” Where a woman says “yes” but is under such incapacity that the “yes” may not be knowing, the “yes” may legally amount to “no.”

Lastly, what legally constitutes sexual intercourse? Pursuant to Colorado statute, the definitions are these:

“Sexual contact” means the knowing touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.

“Sexual intrusion” means any intrusion, however slight, by any object or any part of a person’s body, except the mouth, tongue, or penis, into the genital or anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse.

“Sexual penetration” means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.

Any or all of these may give rise to charges of sexual impropriety if achieved absent consent.

In sexual matters, there must always be informed and knowing consent. “Yes” means “yes” so long as the “yes” is freely given and given under no controlling incapacity. “No” means “no.” Always. Plain and simple.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He may be reached at 926-4461 or e-mail robbins@colorado.net


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