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What Does “Affirmative Consent” for Sexual Activity Mean?

Dave Clark Law March 5, 2024

Accusations have the power to turn lives upside down. Among the toughest accusations to face are those of sex crimes, where just an accusation can ruin someone's future. A conviction could mean: 

  • Legal Penalties: Legal consequences can range from significant fines to potential imprisonment. 

  • Damage to Reputation and Social Standing: This often results in substantial damage to one's reputation, affecting both personal and professional relationships. 

  • Employment and Housing Difficulties: Individuals charged with a sex crime may face challenges in securing employment or finding housing due to the stigma associated with such charges. 

  • Social Stigma and Isolation: The social stigma attached to a sex charge can lead to feelings of isolation and ostracization within the community. 

  • Emotional and Psychological Distress: The stress of facing a sex charge can cause considerable emotional and psychological distress. 

  • Strained Relationships: Relationships with family and friends may be strained due to the complexities and stigma associated with a sex charge. 

  • Sex Offender Registration: In some cases, those convicted of sex crimes may be required to register as a sex offender, which can limit their freedoms and opportunities significantly.

At Dave Clark Law, we understand that behind each false accusation is a person with a story. We are here to help you get through this process.  

Defining Affirmative Consent According to Utah Law 

In Utah where we serve our clients, including those from Salt Lake City, West Valley City, Midvale, Sandy, Murray, Taylorsville, Kearns, West Jordan, Draper, Cottonwood Heights, Millcreek, Tooele, Lehi, Morgan, Ogden, the law provides a specific definition for affirmative consent. As per Utah Code Section 76-5-406.3, consent to any sexual act or prior consensual activity does not constitute consent to any other sexual act. Furthermore, consent that is initially given can be withdrawn through words or conduct at any time prior to or during sexual activity.

This law encourages affirmative consent that is a clear, conscious, and voluntary agreement to engage in sexual activity. This isn't just about saying "yes" once. It's about continuous, active communication throughout the encounter, ensuring that all parties involved are willingly and enthusiastically participating.

What Consent Sounds and Looks Like 

Consent isn't only conveyed through verbal agreement; it involves non-verbal cues and body language as well. Some signs of consent include positive physical cues like active participation, eye contact, smiling, and touching. But remember, consent should be continuously communicated and can be withdrawn at any time. Understanding and respecting these changes in consent is crucial. 

Consent Can Be Given and Then Revoked 

It's important to understand that consent can be given and then revoked at any time. Consent is not a one-time agreement; it's an ongoing process. It can be hard to determine the line that has been crossed in these cases. If you find yourself in this situation it is vital to speak with a criminal defense attorney before speaking with others.  

How Affirmative Consent Applies to Building a Defense Case 

In cases related to sexual activity, affirmative consent plays a significant role in building a defense. It's crucial to establish that affirmative consent was present throughout the encounter. This can involve gathering evidence that supports the presence of affirmative consent, such as text messages, emails, or witness testimonies. Witness interviews and expert testimony can also be invaluable. Additionally, carefully examining the prosecution's evidence can help identify any inconsistencies regarding the presence of affirmative consent.

Here are some possible defenses that could be considered:

  • Clear Communication: Evidence that there was ongoing, clear communication of consent throughout the encounter. 

  • Mutual Understanding: Evidence that all parties involved understood and agreed to the sexual activity. 

  • Lack of Coercion: Demonstrating that the consent was not obtained through physical force, threats, intimidation, or coercion. 

  • Consent Withdrawal: If consent was withdrawn at any point, evidence that this withdrawal was respected immediately. 

  • Capacity to Consent: Evidence that all parties involved were not incapacitated and had the ability to give informed consent. 

Remember, each case is unique, and these defenses might not apply in all situations. It's essential to consult with a legal professional to understand the best defense strategy for your specific case. 

Serious Representation for Serious Crimes 

When faced with serious crimes involving sexual activity, it's essential to have robust legal representation. We understand the complexities of these cases and are dedicated to providing serious representation for serious crimes. We firmly believe in the importance of affirmative consent and its role in building a strong defense case. If you're facing charges related to sexual activity, we're here to help. Contact Dave Clark Law today to discuss your case and work towards the best possible outcome.