An effective defense to many Nevada criminal charges is that the victim consented to the crime. For example, two people who agree to fistfight aren't liable for battery for hitting each other.
Below our Nevada criminal defense lawyers answer legal questions about the Nevada defense of consent. Continue reading to learn the definition of consent, common crimes it applies to, and how it helps defendants escape criminal liability.
What is consent in Nevada criminal law?
Consent is a defense to certain Nevada crimes. Defendants who use the consent defense aren't disputing that they behaved a certain way ... rather, they're claiming their behavior wasn't criminal because the "victim" willingly allowed it to happen. Searchlight criminal defense attorney Michael Becker gives an example:
Max, a high roller, recently had his ban lifted from the Paris casino in Las Vegas. When Max goes into the Paris, a security guard ... who hasn't been informed that the ban's been lifted ... has Max arrested and booked at the Clark County Detention Center for the Nevada crime of trespass. But eventually Max's charge gets dropped after prosecutors learn that he was permitted to be in Paris and that the security guard made a mistake.
A defense attorney in the above example doesn't have to argue that Max didn't walk into the Paris. Instead, all the attorney has to show was that the Paris permitted Max to be there by having lifted the ban.
Note that consent can be either explicit or implied. Explicit consent is when someone states, gestures, or writes that he/she consents. Implied consent is assumed by the situation. For example, football players impliedly consent to being tackled during the course of a game.
How can a defendant in a Nevada criminal case prove that a victim consented?
It depends on the circumstances of the case.
The easiest ways to try to prove consent in court is to show video footage, texts or emails where the victim in his/her own words gives valid consent. It also helps if there're eyewitnesses willing to testify that the victim consented.
In cases without witnesses or physical evidence, proving consent often comes down to the defendant's word against the alleged victim's. So the defense attorney may try to undermine the victim's credibility such as by pointing out inconsistencies in his/her testimony.
What is "ineffective consent" in Nevada criminal law?
"Ineffective consent" is when a victim consents to a crime under circumstances that make his/her consent legally invalid. The three main scenarios of ineffective consent are:
1) The victim isn't mentally competent enough to consent: This includes people with severe mental disabilities or mental illnesses as well as people who are sleeping, unconscious or intoxicated at the time of the alleged crime.
2) The victim was deceived or forced to consent: Consent is invalid if the person was tricked or threatened to agree to something he/she may have otherwise refused.
3) The victim isn't old enough to consent: Obviously, this includes infants and young children. And sex is automatically considered rape when an adult has sex with a child under sixteen even if the child agreed to it (read more about the age of consent in next question).
In short, consent is not a valid defense to a crime in Nevada when circumstances made the victim incapable of exercising reasonable judgment when he/she consented.
What is the "age of consent" for sex in Nevada?
Sixteen. Therefore children fifteen years old and younger may not legally consent to have sex. The Nevada crime of statutory sexual seduction (statutory rape) is when adults eighteen or older have sex with children under sixteen. Goodsprings criminal defense attorney Neil Shouse provides an illustration:
Debbie, who's a child prodigy, begins UNR at age fifteen. She and Dan, an eighteen-year-old in her dorm, have sex one night. If caught, Dan could be booked at the Washoe County Detention Facility for statutory rape.
Note that it's irrelevant in the above example that Debbie wanted to have sex. Nor would it matter if Debbie initiated the sex ... Dan is liable for statutory rape purely because of Debbie's age. Learn more about Nevada age of consent laws
Note that consent is also not a defense to the Nevada crime of incest. Marrying a family member or having sex with a family member is illegal even if both people want to do it.
For what kinds of crimes is "consent" a possible defense in Nevada?
One of the most frequent uses of the consent defense occurs in cases involving the Nevada crime of sexual assault. If the prosecution can't prove that the sex was against the victim's will, then the charge should be dropped.
Consent is also frequently used as a defense to theft crimes such as the Nevada crime of grand larceny. A defendant charged with stealing should get the case dismissed if the owner consented to the defendant having the property.
Other common Nevada crimes where consent may be an effective defense includes:
- Nevada crime of battery
- Nevada crime of false imprisonment
- Nevada crime of kidnapping
- Nevada crime of open or gross lewdness
- Nevada crime of transmitting HIV
- Nevada crime of wiretapping
- Nevada crime of trespass
- Nevada crime of extortion
Note that consent is often a matter of degree, and that a "victim" may consent to some conduct but not to others. For example, boxers don't break the law by punching each other because punches fall within the rules of the game. But a boxer could be criminally liable if they do something excessively violent or against the rules such as punching the opponent between rounds.
Charged with a crime? Call us for help ...
If you've been accused of a crime in Nevada, call our Las Vegas criminal defense attorneys at 702-DEFENSE (333-3673) to discuss possible defenses including consent. We might be able to get the charges reduced or dropped completely. And we're always ready to fight for your innocence in front of a jury.
We represent client throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.