# Consent is not a defense in sexual crimes. Huh? **URL:** \ **Category:** Factual Questions\ **Created:** [January 19, 2009, 5:13pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011 "2009-01-19T17:13:36Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [January 19, 2009, 5:13pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/1 "2009-01-19T17:13:36Z")
In [this](http://www.newsok.com/ex-sheriff-mike-burgess-found-guilty-of-sex-abuse/article/3338895) article, a sheriff is accused of various sexual crimes. > [@The Daily Oklahoman](#): > > Burgess admitted to having a 14-month affair with Mason, claiming on the witness stand that the relationship was consensual. But the judge’s instructions to the jury stated that consent could not be used as a defense for forcible oral sodomy, second-degree rape or sexual battery. > > Defense attorney Steve Huddleston said he plans to appeal that instruction. Without debating the guilt or innocence of the sheriff, how could the judge give that instruction? Doesn’t that put the accused in something of an untenable situation? Since he admitted to the sex on the stand, wouldn’t he be automatically guilty if he can’t use a consent defense? I’m sure that I’m just missing something. ---
**Author:** ![Gary\_T](https://avatars.discourse-cdn.com/v4/letter/g/3ec8ea/32.png) [@Gary\_T](https://boards.straightdope.com/u/Gary_T)\ **Post date:** [January 19, 2009, 5:20pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/2 "2009-01-19T17:20:57Z")
Note that the crimes mentioned are not merely having sex. Presumably you could get someone’s consent to bash his head in with a hammer, but I doubt that would be a valid legal defense against assault (or murder) charges. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 19, 2009, 5:21pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/3 "2009-01-19T17:21:43Z")
I’m having trouble loading the article. I’m sure it is me not you. If it is the case I read about this was sex with an inmate right? The law there states that sex with an inmate by guards is rape. It is statutory. By law an inmate can not give legal consent because of the position of authority the other party is in. It is to easy for the power of the position to be abused. Similar to statutory rape due to age or mental defect. ---
**Author:** ![Dilton\_Doiley\_Philosopher\_King](https://avatars.discourse-cdn.com/v4/letter/d/f1d935/32.png) [@Dilton\_Doiley\_Philosopher\_King](https://boards.straightdope.com/u/Dilton_Doiley_Philosopher_King)\ **Post date:** [January 19, 2009, 5:22pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/4 "2009-01-19T17:22:30Z")
Didn’t read the article, but certainly the relationship could be consensual, but not the assault. Additionally, depending on the way you read it, it could be read as “But the judge’s instructions to the jury stated THAT consent [consent to relationship] could not be used…” as opposed to “But the judge’s instructions to the jury stated that CONSENT [in general] could not be used…” ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 19, 2009, 5:25pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/5 "2009-01-19T17:25:12Z")
Ok I read the article and then found one that explained it better. [http://www.google.com/hostednews/ap/article/ALeqM5iJxQWeZJVWtq\_54O0U0VNKarHxcwD95P70D81](http://www.google.com/hostednews/ap/article/ALeqM5iJxQWeZJVWtq_54O0U0VNKarHxcwD95P70D81) I was correct: > [@](#): > > Under state law, an inmate cannot legally consent to sexual relations with a jailer or anyone else who controls the conditions of the prisoner’s confinement. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [January 19, 2009, 5:25pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/6 "2009-01-19T17:25:34Z")
> [@KRM](#): > > Without debating the guilt or innocence of the sheriff, how could the judge give that instruction? Doesn’t that put the accused in something of an untenable situation? Since he admitted to the sex on the stand, wouldn’t he be automatically guilty if he can’t use a consent defense? > > I’m sure that I’m just missing something. Didn’t read the article, but it’s probably a case of statutory rape. In which case, consent is indeed not a defence. ---
**Author:** ![postcards](https://avatars.discourse-cdn.com/v4/letter/p/8e8cbc/32.png) [@postcards](https://boards.straightdope.com/u/postcards)\ **Post date:** [January 19, 2009, 5:27pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/7 "2009-01-19T17:27:55Z")
Yes, they were either inmates or participants in a drug-release program (not clear from the linked article, but a little digging provided earlier stories of the trial itself), so the victims would fall under the circumstances **Loach** mentions. Edit: Damn, I’ve got to type faster! ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [January 19, 2009, 5:30pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/8 "2009-01-19T17:30:15Z")
OK. That makes sense. When I read that they were Drug Court “participants”, I assumed that they were employees or some such. ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [January 19, 2009, 5:51pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/9 "2009-01-19T17:51:04Z")
Why did they release the victim’s name? I thought they didn’t do that in cases of sexual abuse…or can the victim waive that right? ---
**Author:** ![Duck\_Quack\_s\_Echo](https://avatars.discourse-cdn.com/v4/letter/d/f0a364/32.png) [@Duck\_Quack\_s\_Echo](https://boards.straightdope.com/u/Duck_Quack_s_Echo)\ **Post date:** [January 19, 2009, 11:14pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/10 "2009-01-19T23:14:25Z")
I know it’s off topic and I don’t want to derail the thread, but what is "oral sodomy’? ---
**Author:** ![Arkcon](https://avatars.discourse-cdn.com/v4/letter/a/96bed5/32.png) [@Arkcon](https://boards.straightdope.com/u/Arkcon)\ **Post date:** [January 19, 2009, 11:19pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/11 "2009-01-19T23:19:42Z")
> [@Duck\_Quack\_s\_Echo](#): > > I know it’s off topic and I don’t want to derail the thread, but what is "oral sodomy’? One of the varied definitions for various sexual acts that various jurisdictions apply across the US. Boy, that would be a mouthful if I said it. Basically, to some definitions, everything other than vaginal intercourse is sodomy. Might even be illegal if consensual. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 20, 2009, 12:18am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/12 "2009-01-20T00:18:39Z")
> [@Freudian\_Slit](#): > > Why did they release the victim’s name? I thought they didn’t do that in cases of sexual abuse…or can the victim waive that right? The names of underaged victims, as well as victims of forcible or coercive sexual crimes, are generally not released, or not used as editorial policy. I have no idea why they were used in this case – possibly because they were already criminals by virtue of their previous sentence, and therefore not entitled to a protection aimed at not spreading tales about law-abiding members of the community who were victimized? Legal consent is a slippery concept. A hot-to-trot 15-year-old is held legally incapable of giving consent to sex, even if he/she is the instigator of the sexual contact. A person of (temporary or permanent) deficient mental capacity is incapable of consent – in addition to the developmentally disabled, this also includes girls who were gotten drunk, administered date-rape drugs, etc. And finally, a person cannot give consent to someone in a position of authority over them – prisoner/guard, officer/enlisted person, teacher/student, are examples. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [January 20, 2009, 12:46am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/13 "2009-01-20T00:46:38Z")
> [@Arkcon](#): > > One of the varied definitions for various sexual acts that various jurisdictions apply across the US. _Boy, that would be a mouthful if I said it._ That’s the whole point. ---
**Author:** ![chorpler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chorpler/32/2888_2.png) [@chorpler](https://boards.straightdope.com/u/chorpler)\ **Post date:** [January 20, 2009, 1:07am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/14 "2009-01-20T01:07:02Z")
> [@Arkcon](#): > > One of the varied definitions for various sexual acts that various jurisdictions apply across the US. Boy, that would be a mouthful if I said it. Basically, to some definitions, everything other than vaginal intercourse is sodomy. Might even be illegal if consensual. So, it’s almost certainly just regular oral sex, but in some jurisdictions (including this one, evidently) anything but vaginal sex is called sodomy… right? ---
**Author:** ![Vox\_Imperatoris](https://avatars.discourse-cdn.com/v4/letter/v/f9ae1b/32.png) [@Vox\_Imperatoris](https://boards.straightdope.com/u/Vox_Imperatoris)\ **Post date:** [January 20, 2009, 2:13am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/15 "2009-01-20T02:13:14Z")
> [@chorpler](#): > > So, it’s almost certainly just regular oral sex, but in some jurisdictions (including this one, evidently) anything but vaginal sex is called sodomy… right? Yes. That’s what sodomy means, legally. Valete, Vox Imperatoris ---
**Author:** ![Todderbob](https://avatars.discourse-cdn.com/v4/letter/t/e47774/32.png) [@Todderbob](https://boards.straightdope.com/u/Todderbob)\ **Post date:** [January 20, 2009, 2:27am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/16 "2009-01-20T02:27:13Z")
> [@Polycarp](#): > > And finally, a person cannot give consent to someone in a position of authority over them – prisoner/guard, officer/enlisted person, **teacher/student** , are examples. This example, in some areas, is no longer applicable. In Washington State, at least. Reference: [Here](http://seattletimes.nwsource.com/html/politics/2008644620_teachersex19m.html). […] the state Court of Appeals ruled that a former Hoquiam High School choir teacher accused of having an intimate relationship with an 18-year-old choir member could not be charged with sexual misconduct because the state law criminalizing teacher-student sex is unconstitutionally vague. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 20, 2009, 6:08am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/17 "2009-01-20T06:08:53Z")
> [@Todderbob](#): > > This example, in some areas, is no longer applicable. > > In Washington State, at least. > Reference: [Here](http://seattletimes.nwsource.com/html/politics/2008644620_teachersex19m.html). > > […] the state Court of Appeals ruled that a former Hoquiam High School choir teacher accused of having an intimate relationship with an 18-year-old choir member could not be charged with sexual misconduct because the state law criminalizing teacher-student sex is unconstitutionally vague. It is probably still applicable, it has just been narrowed to anyone under 18. It may still change the age of consent. For instance in New Jersey the age of consent is 16. However it is 18 when there is a position of authority involved. ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [January 20, 2009, 8:55am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/18 "2009-01-20T08:55:35Z")
There was an English case a while back where members of an S&M ring were charged with assault. Convictions upheld on the basis that consent isn’t generally a defence to assault - including sexual assault - except in limited circumstances such as boxing. Went all the way to the European Court of Human Rights which refused to overturn the ruling (mostly on the basis of states’ rights to regulate the infliction of harm on others). Not exactly the same scenario as that in the OP but an example of consent not being a defence to acts deemed “sexual assault”. ---
**Author:** ![Mk\_VII](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Mk\_VII](https://boards.straightdope.com/u/Mk_VII)\ **Post date:** [January 20, 2009, 10:48am UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/19 "2009-01-20T10:48:45Z")
Yes, they were hammering nails through each others dicks and stuff, and they lost even though the assaults were consensual. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [January 20, 2009, 1:52pm UTC](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011/20 "2009-01-20T13:52:41Z")
You cannot consent to an illegal act. Nor is forced consent legal. If a man puts a gun to a woman’s husband’s head and says if she doesn’t agree to have sex with him he’ll blow the husband’s head off, so she agrees to it, is that “consenual sex”? [Next page](https://boards.straightdope.com/t/consent-is-not-a-defense-in-sexual-crimes-huh/482011.md?page=2)