Consent Issues

Despite 30 years of statutory reforms and public awareness efforts, the question of whether victims consent to sex remains at the heart of most sexual assault cases. The following examples demonstrate that, without clear legal definitions of consent, innuendos and pervasive victim-blaming myths can re-victimize individuals and pose challenges for prosecutors:

• Consider the case in which a waitress was sexually assaulted because, as the defendant put it, "her T-shirt gave consent." In another case, a defense attorney emphasized the fact that the victim was not wearing underwear and stressed that this implied consent.¹ 
• In State of Kansas v. Bunyard (281 Kan. 392, 133 P.3d 14 (2006)), the supreme court ruled that a defendant should be entitled to a reasonable time in which to act after consent is withdrawn. The court concluded that the jury should determine whether the time between withdrawal of consent and the interruption of intercourse was reasonable.

As the above cases suggest, your SART would do well to proactively address statutory elements of sexual assault in your jurisdiction and define what constitutes consent based on a range of circumstances. For example, you need to discuss specific issues and reach interagency understandings about consent in cases in which—

• Victims previously had consensual sex with the assailant.
• Consent was initially given just prior to the assault but subsequently withdrawn.
• Sexual assault occurs during marriage.
• Alcohol or recreational drug use was involved.
• Human trafficking is suspected.