Consent may be a valid defense to charges of rape or other sexual crimes, but establishing that an alleged victim consented to sexual contact on a specific occasion may not always be easy. In many cases, the only two individuals in a sex crimes case who have first-hand knowledge as to whether the alleged victim gave consent is the alleged victim and the person accused of a crime. Nonetheless, there may be strong circumstantial and other evidence available to help those accused of sexual crimes mount a strong defense.
Pitfalls of Attempting to Record Consent
In light of the #MeToo movement, some people have (with varying degrees of seriousness) suggested that individuals secure written consent from the other party before engaging in sexual or physical activity. Others have advocated for individuals videotaping their partner giving consent prior to any intimate contact occurring. However, there are a variety of reasons why such contracts, memoranda of understanding, or videotaped recordings are helpful in later prosecutions:
- First, they often come across to juries as insincere and forced. Juries might easily see them as an effort by the defendant to “cover their tracks”
- Second, consent is a fluid concept. That is, just because an alleged victim consented to sexual contact at one moment does not mean they cannot revoke that consent or refuse to consent to certain activities
- Third, such evidence is oftentimes capable of digital manipulation. Accused individuals may have a difficult time establishing for the court that a signature or recording is authentic.
Those accused of committing rape or other sexual crimes who attempt to defend themselves in this manner may, therefore, be disappointed when a “consent contract” or video recording complicates their cases.
Proving Consent in an Ohio Sex Crimes Case
If written documents or videotaped recordings of an alleged victim consenting to sexual conduct is not necessarily the best evidence to prove a sexual encounter was consensual, what evidence should a defendant consider using instead? In the hands of a skilled criminal defense lawyer, any of the following evidence (either individually or taken together) may be useful in suggesting the alleged victim actually consented to the sexual contact:
- E-mails, text messages, and other communications between the parties before and after the alleged incident
- Statements of witnesses who observed interactions between the parties before the alleged incident
- The dating or sexual history between the parties
- Other circumstantial evidence such as the lack of injuries to either party, the actions of the alleged victim after the alleged incident, and
Some of these important items of evidence (like e-mails and text messages) can disappear quickly if prompt action is not taken to preserve them.
Those accused of committing criminal sexual acts should also always remember that the presumption of innocence means that the burden is always on the prosecution to show there was no consent. The defendant does not need to prove to the jury that the encounter was consensual. Instead, if the jury has any reasonable doubt as to whether the incident was nonconsensual, then the jury is to acquit the accused.
How a Columbus Criminal Defense Attorney Can Help
There may not be a method to completely guarantee you will not face allegations of sexual misconduct after an intimate encounter with another person. What is important, however, is seeking knowledgeable legal help as soon as possible to assist you in defending yourself against these allegations. Dawes Legal, LLC, is a seasoned Columbus criminal defense law firm that has experience in successfully representing individuals charged with sexual offenses. Contact our office at (614) 733-9999 to learn more about how we might be able to help in your case.