In sex crimes cases, consent is one of the most important factors in determining whether or not the defendant will be found guilty. Talk with a Virginia student defense attorney to discuss what this term means and different factors can make consent more difficult to prove. For assistance with your case, call and schedule a consultation today.
Who Determines Whether Act Was Consensual
If we are taking abut a criminal charge it is going to be either the judge or the jury hearing the case. If we are talking about an allegation that is initiated on campus then it is going to be an officer or an employee that makes that determination as to whether or not the complaining witness consented to the sexual activity at the time that it happened.
Are There Differences Between How Courts and Colleges/Universities View Consent?
Yes, the legal standards of proof are different. In court in a criminal case, the government must present proof beyond a reasonable doubt that there was no consent to sex. The legal standards in an administrative process is whether “preponderance of the evidence” so it is more likely than not that the woman did not consent. So there is a huge difference.
Factors That Make Establishing Consent Difficult
When the only witnesses are the victim and the defendant then you have the situation of typical ‘he said’-‘she said’ scenario. So unless you were there or unless there is a video of it or some sort of written confession one way or another, then establishing consent or lack of consent becomes an extremely difficult issue. That is when the burden of proof really comes into play because if it is ‘he said’-‘she said’ and you are in criminal court and there is no sort of evidence to tilt the scales, then the accused will be acquitted.
If all things being equal and both people are equally as credible and the jury really has no idea who to believe then the defendant should be acquitted of the charges.
Whereas if the standard of proof is preponderance of the evidence then it is not as clear because the standard is just so low then you could have sort of a stretching of what is believable be enough to tip the scales against an accused. Then, the person would face administrative consequences of that decision. The burden of proof is extremely important. Understanding what forums we are in when we are evaluating the evidence makes a big difference.
Effect of Impairment Due to Drugs or Alcohol on Establishing Consent
Drugs and alcohol impair a person’s ability to remember and to make clear judgments and good decisions.
Going back to the situation in which a female will have sexual intercourse with an individual and then the next day they think, “I didn’t consent to it” or “Maybe if I was sober I would never have consented to that.” But at the time that it happened she actually did and it was because she drank way too much that her judgment was impaired. Just because she wakes up the next day and thinks, “Well I did not want to have sex with that person” does not mean she did not consent to it.
Affirmative Consent in VA College Sex Crimes Cases
Affirmative consent means that there is a duty of a person that chooses to have sex with a person to hear the words, “Yes, I am consenting to sexual activity.” It is a growing campaign to put that on the prerequisite to sexual activity which many could argue is unnatural. Universities and certain organizations are employing this policy for the greater good, but it is not very practical.
Steps a Lawyer Can Take To Prove Consent
The attorney must show that evidence from the circumstances surrounding the sex act. What types of things does a woman say that would lead a reasonable person to believe that she was interested in sex? We can use our common sense for that. Likewise what type of conduct did she engage in? Was there kissing, was there touching, was there taking off of clothes, were they in bed together.
The analysis would start with answering those types of questions to paint a picture of a consensual act. Also, the attorney would investigate and gather evidence supporting prior sexual relation between the parties or prior behavior indicating the complaining witness was interested in the accused or had made statements to others that she consented to the sex.
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