Consent is often mentioned in many types of crimes but is probably best known in the context of crimes of a sexual nature such as sexual assault. Understanding how Nevada law defines consent and what it means in a criminal case is essential in establishing your defense.
How does Nevada define consent?
There is no specific Nevada statute that defines consent. However, it is described under NRS § 200.366 Sexual assault: Definition; penalties; exclusions as an element of sexual assault. In defining the crime of sexual assault, consent is also defined. Consent is denied when:
- The victim is forced to perform the sexual act against their will either by physical force, manipulation, threats, or coercion, or
- The victim is physically or mentally incapable of resisting or understanding the nature of the accused’s conduct
- The victim is younger than the age of consent set by Nevada law
This means that if the accused forces the victim in any way to be compliant with their sexual advances or conduct, then the victim did not give consent. It means that the act was performed against the victim’s will.
If the victim is a child or an adult who is developmentally disabled or has a mental incapacity lack understanding of the behavior and therefore cannot give consent. Someone who cannot give consent or resist because of physical limitations is not able, according to the law, to give consent.
Of course, if the victim is a minor, under the age of consent, they do not have the authority to consent.
What is the age of consent in Nevada?
Under NRS § 200.366(3), the age of consent in Nevada is 16 years old. The also states that if a person commits sexual assault against a child who has not yet reached the age of consent, then he or she is guilty of a Category A Felony. The penalty for violating this law is harsh, carrying a prison sentence that is a minimum of 25 years.
- If the child sustains substantial bodily harm as a result of the crime, the maximum penalty is life in prison without the possibility of parole
- If the child does not sustain substantial bodily harm as a result of the crime, the maximum penalty is life in the state prison with the possibility of parole – eligibility beginning at a minimum of 25 years of time served
- If the child is younger than 14 years old and does not sustain substantial bodily harm, the maximum penalty is life in the state prison with the possibility of parole – eligibility beginning at a minimum of 35 years of time served
If the accused is 18 years old or older and the victim is 14 or 15 years old and 4 years younger or less than the accused, then the crime is “statutory sexual seduction” per NRS § 200.364(10). However, if the accused is younger than 18 years old and the child is younger is than 14 years old, the accused is not guilty of sexual assault if there is no more than 2 years difference in their ages. But if the accused uses force or the threat of force or is aware that the victim is not capable of giving consent or resisting due to physical or mental incapacity, then the accused is guilty of the crime.
What is the legal role of consent in a crime?
Consent plays a vital role in determining if an act is a crime according to the law. Consent must meet three criteria for the act to be lawful:
- It must be affirmative meaning that the person expressed through very obvious words or actions that they were in agreement with the act
- It must be freely given meaning that the person offered consent of their own free will and they were not subjected to violence, coercion, fraud, or a threat of violence
- The person must have the capacity to consent, meaning:
- They are at or above the age of consent which is 16 years old in the state of Nevada
- They are not developmentally disabled
- They are not intoxicated
- They do not have a physical disability that impacts their capacity to give consent
- They were not unconscious
- They are not considered a “vulnerable adult” such as an ill or elderly person
- The accused is not in a position of authority over the victim such as a correctional officer or teacher
Consent is often used as a defense in many sexual assault cases. How it is used depends on the particulars of the case. The criminal defense attorney will review the case and examine the evidence to find the best defense possible.
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