How Does Illinois Define Consent for Sexual Offense Cases?

 Posted on September 29, 2024 in Sex Crimes

Consent plays a central role in many sexual offense cases and is often the key difference between an intimate encounter and a sex crime. In criminal defense, proving there was consent can lead to the dismissal of sex offense charges such as rape, sexual abuse, sexual battery, or sexual assault.

But how does Illinois law define consent? In this article, we will explore what is considered consent in the State of Illinois and when it becomes the determining factor between a lawful sexual encounter and a sex crime. If you or someone you know has been accused of a sexual offense, contact an Illinois criminal defense attorney right away to begin building your defense.

How Does Illinois Define Sexual Consent?

Illinois law defines consent as a "freely given agreement" to a sex act or to sexual conduct. This means that an absence of resistance is not good enough to count as consent. If a participant in a sex act does not physically resist or refuse, for example, it is not a sufficient defense against a rape or sexual assault charge. For an act to be considered consensual, both parties must give their agreement independently and without having been coerced, threatened, forced, or intimidated.

Another important element of consent is that both parties must understand the nature of the act and have the capacity to agree to it. As we will see, this means that not all agreements are considered consent, so consent is not always a valid defense against sex crime charges.

When Is Consent Not a Valid Defense Against Sex Crime Charges?

Suggesting the alleged victim consented to sex is not a valid defense against a sex crime charge if he or she did not have the capacity to give it. If he or she was: 

• Below the age of consent: The age of consent in Illinois is 17. This means that anyone 16 and under is considered incapable of giving consent. Even if he or she voiced agreement or initiated the sex act, it is not considered consent and cannot be used to defend against a sex crime charge.

• Under the influence: Someone who is under the influence of alcohol or drugs may be considered to lack the capacity to give consent. However, this is not always the case. Many consensual intimate encounters are fueled by substances like alcohol, which makes rape and sexual assault trials more complex when they involve alcohol or drugs.

• Mental incapacitated: Similarly, consent is not valid when it is given by someone who is mentally disabled or suffers from a disorder that renders them incapable of understanding the nature of the sex act.

Contact a Rolling Meadows, IL Sex Crime Defense Attorney

There is no clear-cut strategy for defending against sex crime charges. Even if the other participant gave consent, it does not necessarily mean you will not be found guilty of a crime. Contact Scott F. Anderson, Attorney at Law to give yourself the best legal defense possible.

With over 25 years of experience on both sides of the criminal justice system, attorney Scott Anderson understands how to create an effective legal strategy to protect your rights. Schedule a free consultation with an Arlington Heights, IL criminal defense lawyer by calling 847-253-3400 today.