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DAVID CLARK
Criminal Defense Attorney

Consent Issues in Philadelphia Campus Sex Crime Cases

Consent is an affirmative decision to engage in mutually acceptable sexual activity and given by clear words or choice as per the University of Pennsylvania. According to their consent policy, “it is an informed decision made freely and actively, and may not be inferred from silence, passivity or lack of resistance. Consent to one form of sexual activity does not imply consent to all forms of sexual activity, and the existence of previous sexual relationships does not constitute consent to future or additional sexual relationships.”

The policy goes on to describe consent as being only valid if gotten from an awake alert and non-compromised individual. The school and other similar policies, state that consent cannot be obtained from someone who is asleep, unconscious or otherwise mentally, physically incapacitated due to drugs, alcohol or some other condition, and consent cannot be obtained by threat, coercion, intimidation,  isolation or force. The policy explains that a student’s own use of alcohol or drugs does not automatically eliminate the consent or the responsibility of both parties to get consent before moving forward.

The consent policy varies from school to school. However, the legal definition is much less demanding because the standard is made out of criminal case common law as opposed to school disciplinary actions and regulations. It is best to reach out to an experienced student defense lawyer to learn about consent issues in Philadelphia campus sex crime cases.

Determining Whether a Sexual Act is Consensual

In most sex crime cases, the complaining witness or the alleged victim is the one who states that consent was not valid and that there was some violation that occurred. However, the accusation alone is not enough to determine whether consent was present. Then the school would have a hearing as part of the disciplinary process about this issue unless the student being charged agreed there was no consent, then that would be an admission of responsibility.

If the defense of the student disagrees and says the consent was valid,  the school would make their own determination based on school policy and what was presented to them in terms of witnesses and testimony. That would be a second more objective determination about the consent in the case. A diligent student defense attorney could help with consent issues in Philadelphia campus sex crime cases.

What Factors Make Consent Difficult to Establish?

It can be difficult to establish consent on college campuses because it may be a he-said-she-said situation. Often, there is no written evidence of consent or other witnesses that saw the sexual act in question.  Also, vague or misleading language in text messages, social media, and even in-person flirting cannot always be clear what the parties were talking about or agreed to prior to any sexual interactions. Proving affirmative consent can be difficult without proper legal counsel.

Understanding Affirmative Consent in Campus Sex Crime Cases

There is a movement in some schools to have a “yes means yes” policies that require affirmative spoken consent. One example is the college end-rape-on-campus (EROC) movement, where schools in different jurisdictions are moving to have new laws put in place for more affirmative consent policies on college campuses.

Some problems with affirmative consent are that the college standard is different from the legal standard. So, the interaction may be completely legal but still against a college’s specific policy. Additionally, based on the type of relationship the parties had, and how they ended up to be in a sexual situation, affirmative consent spoken verbally with specific words required by a university handbook may be forgotten in the moment of a sexual encounter. If they are required by the school, then after the fact, it is difficult to go back and prove that the consent was valid if the exact school text-book consent protocols were not followed.

How a Student Defense Attorney Could Help

A lawyer can go back and gather relevant evidence about the case, put it together, and present it in a way that shows the subjective state of mind of both parties. This can be done through other witnesses, physical evidence, digital evidence, electronic evidence, and also, when available, questioning of the witnesses out there that night, and what happened before the sexual interaction.

While consent can always be withdrawn, a skilled lawyer could show that consent seemed to be present every step along the way, and there was no apparent drugs, alcohol, force, or threatening behavior present to undermine the mental state of the parties. Reach out to a seasoned defense attorney to learn about the common consent issues in Philadelphia campus sex crime cases.  Call today.