Sexual Assault Awareness and Prevention Month: The Role of Law and Consent

AUTHOR: ASHLEY BENEDICT

Many people are unaware of the laws when it comes to sexual assault and rape cases. In this post, I will discuss what the laws are in Michigan, the rate at which perpetrators get convicted, and the role of consent in the law.

Criminal Justice System

What is the law?

In the state of Michigan, criminal sexual conduct in the first degree includes:

  • Engages in sexual penetration with another person and if any of the following circumstances exist:
    • The person is under 13 years of age
    • The person is at least 13 but less than 16 years of age and the perpetrator is in a position of authority
    • This includes authority figures, such as school officials, individuals who work in childcare, therapists/counselors, etc.
  • Incestuous cases, e.g., parents, siblings, other relatives
  • The perpetrator is aided or abetted by one other person as long as one of the following circumstances is present:
    • The perpetrator knows that the victim/survivor is mentally incapable, mentally incapacitated, or physically helpless
    • Uses force or coercion for penetration
    • The perpetrator is armed with a weapon, or something that makes the victim/survivor believe that they have a weapon
    • Threats of force
  • The perpetrator causes personal injury to the victim/survivor
    • Personal injury means: bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.
  • If a sexual assault results in HIV or pregnancy, it becomes a first degree act
  • Remember the different types of sexual assault 

Click here to see what constitutes criminal sexual conduct in the second, third, and fourth degrees in Michigan

How often do perpetrators get convicted?
  • Out of every 1,000 rapes, 994 perpetrators will walk free
  • Out of every 1,000 rapes, only 310 cases are reported to police
  • Out of those 310 reports, only 57 lead to arrests
  • Out of those 57 arrests, only 11 cases get referred to prosecutors
  • Only 7 of those cases will lead to felony convictions
  • Only 6 rapists will be incarcerated (out of 1,000) – less than 1%
  • Perpetrators of sexual violence are less likely to go to prison than other criminals:
    • Out of every 1,000 robberies, 20 robbers will be incarcerated
    • Out of every 1,000 assault and battery crimes, 33 criminals will be incarcerated
  • 2 out of 3 sexual assaults are never reported to police
  • For individuals of college age, female students report 20% of the time, while female non-students report 32% of the time
  • The elderly only report 28% of the time
  • In the military, around 43% of female victim/survivors report and 10% of male victim/survivors report

Consent

What Consent Looks Like

The laws about consent vary by state and situation. It can make the topic confusing, but you don’t have to be a legal expert to understand how consent plays out in real life.

Consent is an agreement between participants to engage in sexual activity. There are many ways to give consent, and some of those are discussed below. Consent doesn’t have to be verbal, but verbally agreeing to different sexual activities can help both you and your partner respect each other’s boundaries.

How does consent work in real life?

When you’re engaging in sexual activity, consent is about communication. And it should happen every time. Giving consent for one activity, one time, does not mean giving consent for increased or recurring sexual contact. For example, agreeing to kiss someone doesn’t give that person permission to remove your clothes. Having sex with someone in the past doesn’t give that person permission to have sex with you again in the future.

You can change your mind at any time. You can withdraw consent at any point if you feel uncomfortable. It’s important to clearly communicate to your partner that you are no longer comfortable with this activity and wish to stop. The best way to ensure both parties are comfortable with any sexual activity is to talk about it.

Positive consent can look like this:

  • Communicating when you change the type or degree of sexual activity with phrases like “Is this OK?”
  • Explicitly agreeing to certain activities, either by saying “yes” or another affirmative statement, like “I’m open to trying.”
  • Using physical cues to let the other person know you’re comfortable taking things to the next level

It does NOT look like this:

  • Refusing to acknowledge “no”
  • Assuming that wearing certain clothes, flirting, or kissing is an invitation for anything more
  • Someone being under the legal age of consent, as defined by the state
  • Someone being incapacitated because of drugs or alcohol
  • Pressuring someone into sexual activity by using fear or intimidation
  • Assuming you have permission to engage in a sexual act because you’ve done it in the past
The Legal Role of Consent

There is no single legal definition of consent. Each state sets its own definition, either in law or through court cases. In general, there are three main ways that states analyze consent in relation to sexual acts:

  • Affirmative consent: Did the person express overt actions or words indicating agreement for sexual acts?
  • Freely given consent: Was the consent offered of the person’s own free will, without being induced by fraud, coercion, violence, or threat of violence?
  • Capacity to consent: Did the individual have the capacity, or legal ability, to consent?
Capacity to consent

A person’s capacity, or ability, to legally consent to sexual activity can be based on a number of factors, which often vary from state to state. In a criminal investigation, a state may use these factors to determine if a person who engaged in sexual activity had the capacity to consent. If not, the state may be able to charge the perpetrator with a crime. Examples of some factors that may contribute to someone’s capacity to consent include:

  • Age: Is the person at or above the age of consent for that state? Does the age difference between the perpetrator and victim affect the age of consent in that state?
  • Developmental disability: Does the person have a developmental disability or other form of mental incapacitation, such as a traumatic brain injury?
  • Intoxication: Was the person intoxicated? Different states have different definitions of intoxication, and in some states it matters whether you voluntarily or involuntarily became intoxicated.
  • Physical disability: Does the persona have a physical disability, incapacity, or other form of helplessness?
  • Relationship of victim/perpetrator: Was the alleged perpetrator in a position of authority, such as such as a teacher or correctional office?
  • Unconsciousness: Was the person sleeping, sedated, strangulated, or suffering from physical trauma?
  • Vulnerable adults: Is the person considered a vulnerable adult, such as an elderly or ill person? Is this adult dependent on others for care?
Consent in Michigan

How is Consent Defined?

  • Consent is not specifically defined. The standard used in the sexual assault statutes is whether the accused used “force or coercion to accomplish the sexual [act].” Note: force/coercion or the threat of force can be psychological, not just physical.

Does the definition require “freely given consent” or “affirmative consent”?

  • Not specified. In Michigan, you need to provide consent, but consent doesn’t have to be verbal.

At what age is a person able to consent?

  • 16 years old, unless such person is employed at the victim’s school in which case the age of consent is 18 years old.

Does developmental disability and/or mental incapacity impact the victim’s ability to consent?

  • It depends on the nature of their disability. Some people, due to their disability, are unable to provide consent.

Does consciousness impact the victim’s ability consent?

  • Yes. A person is guilty of criminal sexual conduct if the person engages in sexual penetration or contact and the actor knows or has reason to know that the victim is physically helpless, which includes unconsciousness.
  • Physically helpless” means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act.

Does intoxication impact the victim’s ability to consent?

  • Michigan State Law thus states that a person who is intoxicated is legally unable to give consent to sexual activity

__________________________________________________________________

What do you think about Michigan’s current laws pertaining to sexual assault and consent? Do you think we could do better? The statistics related to perpetrators walking free can be disheartening. What do you think needs to change in order to ensure perpetrators are convicted more often? Did any of this information surprise you? Let us know by sending in any work, questions, or comments to gvsufeministvoices@gmail.com

 

 

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