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3 ways "consent" is NOT a defense to rape in Nevada

Posted by Neil Shouse | Jan 26, 2015 | 0 Comments

Consent is an ineffective defense to rape in Nevada when the victim is too incapacitated to give consent, is forced to give consent, or is under 16 years old.

Nevada defines sexual assault ("rape") as having sexual penetration with another person without his/her consent. Therefore a common defense to rape charges is that the "victim" did indeed consent to the sex and then later falsely accused the defendant of rape out of regret, anger, or misunderstanding. But there are three scenarios where consent does not work as a defense to rape in Nevada:

  1. The victim was not able to give consent in the first place. This occurs when the victim is sleeping, intoxicated, otherwise unconscious, or mentally incapacitated.
  2. The victim consented under duress. This occurs when the defendant or someone else threatened the victim with harm unless he/she went through with the sex.
  3. The victim is underage. Nevada's age of consent is 16, so no child age 15 or younger can legally consent even if the child claims he/she consented.

In Nevada sexual assault cases, the typical evidence consists of witness testimony and any forensic evidence of the alleged sexual encounter (such as through a rape kit). Though in many situations, rape charges come down to a case of he said/she said, and the defense attorney's job is to demonstrate that the victim lacks credibility. Read more information on the Nevada defense of consent.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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