Comprender los casos de defensa por consentimiento en Texas

Comprender la defensa del consentimiento en los casos de Texas

In certain criminal cases, a defendant might use the defense of consent to argue against being held criminally responsible. This defense applies only to crimes where consent, or lack thereof, is key. It can be particularly important in cases involving sexual conduct or other offenses where consent is a significant issue. In this blog post, we’ll examine how consent operates as a defense in criminal law, examining its complexities and implications.

Affirmative Defenses Of Consent

Do you believe your actions, though typically illegal, were justified in this situation? Did you genuinely think the person you’re accused of harming agreed to what happened? Rather than denying the act, you can assert the affirmative defense of consent.

With an affirmative defense, you admit to the illegal action but explain why you believe it was justified at that moment. Successfully arguing this defense could help you avoid criminal liability.

Defining Consent In Texas

Consent plays a vital role in many criminal offenses in Texas. If the person you’re accused of harming agrees with your actions or behavior, you cannot be convicted of a crime.

But what exactly does “consent” mean in legal terms? According to Texas law, consent is defined as “agreement, whether express or implied.” This means that consent involves showing approval or agreement in some way.

Direct Consent

Direct consent occurs when someone agrees to participate in an activity or allows the defendant to engage in such behavior. This agreement is typically expressed verbally or in writing, leaving no doubt about the person’s intention.

Apparent Consent

Apparent consent, also referred to as implied consent, is when it is assumed that a person has agreed to something based on their behavior and the circumstances of a particular situation. Many consent-related matters arise from situations where a person reasonably believed that they had apparent consent, even if that belief was mistaken.

Using Consent As A Defense To Assault

In Texas, some assault offenses might not be considered crimes if you had consent from the person involved or if you reasonably thought they agreed to what happened. This is often seen in contact sports. According to Texas law, consent can be a defense in assault cases if:

  1. The injury was not severe.
  2. The harm was something that could have been expected and accepted as a risk, and
  3. The person gave consent because they gained something from it.

Establishing Consent for Assault 

When it comes to using consent as a defense in assault cases, three key factors must be met. Firstly, the individual cannot consent to situations that could result in serious bodily harm. Secondly, the harm must be reasonably foreseeable and a risk that a reasonable person would accept. Lastly, the individual must receive some form of benefit from the conduct that justifies their consent.

These requirements are very specific and generally apply only in certain circumstances, such as athletic events. For example, boxers or rugby players are often considered to have consented to the physical contact inherent in their sports. It’s important to note that parents and individuals with power of attorney may be able to give legitimate consent on behalf of another person.

Using Consent As A Defense To Sex Crimes

The defense of consent can be utilized in cases where a lack of consent is a key component of the crime. In Texas, the age of consent is 17. This implies that individuals under the age of 17 cannot legally consent to sexual activities. Despite a minor’s verbal agreement or active pursuit of sexual activity, legal consent cannot be established. Therefore, consent cannot serve as a lawful defense in cases involving sexual activity with a minor, except in the instance where the minor is one’s legal spouse.

Establishing Consent for Sexual Assault 

Using consent as a defense in a criminal case requires more than just saying someone agreed. The person giving consent must have been legally capable of doing so. However, consent won’t count if:

  1. The person didn’t have the authority to give consent, like using your neighbor’s property without permission.
  2. The person couldn’t make a reasonable decision due to being underage, having a mental disorder, or being too intoxicated.
  3. The law doesn’t allow the victim to consent, as in cases of statutory rape.
  4. The consent was forced or obtained through threats.

Restrictions On The Consent Defense


Intoxication can cloud consent. While a person may still consent if they are drunk or on drugs but capable of understanding, forced intoxication affects consent.

Mental Incapacity

If the accused was aware of or should have been aware of a person’s disability, it can undermine claims of consent.

Initiations or Street Gang Activity

Consent isn’t a defense for assault or deadly conduct in gang initiations. In these situations, the person causing harm can’t argue that the other person agreed to it.

¿Arrestado? No se declare, ¡llámeme!

Facing criminal charges can be overwhelming, especially when you believe your actions were justified by consent. If you find yourself in such circumstances, remember that you’re not alone. It’s important to seek help from a knowledgeable legal professional who can guide you through the process and fight for your rights.

Don’t let uncertainty or fear hold you back. Reach out to Texas Criminal Defense Group today to discuss your case. Your future is too important to leave to chance.