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New York Implied Consent

With most sex crimes, the issue of implied consent comes up. Under the law, a sexual crime occurs when a sexual act is perpetrated against a victim without their consent. The law addresses the elements of the crime, as well as the lack of consent. Of course if there is consent, express or implied, there is no crime. So the issue of implied consent is extremely important in defending any alleged sexual crime. Being convicted of a sex crime can be a life altering experience. It can cost you your job, relationship with friends and family and even cause problems with housing. If you have been charged with a sex crime such as rape (New York Penal Law 130.05), child molestation, or child pornography (New York Penal Law 263), it is important to seek prompt legal guidance. Contact Stephen Bilkis and Associates for guidance and a free consultation.

Generally, New York Penal Law Article 130 governs sexual offenses in New York. After years of outcry about the inherent inequity in the law, these crimes were amended by a new bill, called the Sexual Assault Reform Act of 2001, or SARA. SARA has extended additional protection for victims of sex crimes and has enhanced prosecution and increased penalties.

Implied consent can be defined as consent that is not expressly or clearly given. Rather it is given by a person’s actions or silence in some cases. It can be through a gesture, an action or inaction, or silence in some cases and it is reliant on the situation.

Implied consent is dangerous territory. Things may get romantic between two people and it goes from there. They end up having sex. Later, one party may feel embarrassed or remorseful. They may claim that they never actually gave consent for sex and it was rape. The other party may say that they consented by their actions, or perhaps they were asked and they remained silent and didn’t protest. This was interpreted as consent.

This issue is often seen in conjunction with sex crimes such as rape (New York Penal Law 130.05) and sexual assault (New York Penal Law 130.95). In a recent case, the State of New Hampshire vs. Owen Labrie Case No. 2015-0687, the issue of implied consent became very important.

In this case, a wealthy prep school boy had sex with a 15-year-old student who claims that she said no three times. His guilt or innocence clearly depended on consent. If there was no consent, he could be found guilty of rape or sexual assault. Whether there is a true rape charge as issue also depends on whether there was any force used during the incident. Currently, more than ½ the states in the U.S. say that in order to prove a rape charge, they must prove that force was used in addition to a lack of consent.

In other states, such as the state where the Labrie case was tried, the law says that a person is guilty of sexual assault if he or she penetrates another person when the “victim indicates by speech or by conduct” whether consent is freely given.

So whether or not implied consent is a valid defense will depend on the charges and the laws in your particular state.

It is important to note that in general, consent in this context means “words or overt actions” by a person indicating a freely given agreement to perform a particular sex act. Consent does not mean the existence of a prior or current social relationship or that the victim simply failed to resist the defendant’s advances.

Keep in mind that the person that gave the alleged consent must have been able to. For instance, if the person is under the influence of drugs or alcohol at the time, the chances are high that they were unable to give their consent, either express or implied.

One interesting question is whether the accused past conduct can be applied to a present accusation. For example, if the two parties were in a familiar relationship, the argument of implied consent would carry more weight, because they knew each other.

If you have been accused of a sex crime, you know how stressful it can be. Despite this, it is important to take prompt action to ensure that your rights are protected. Contact Stephen Bilkis and Associates for guidance and a free consultation at 800.696.9529.