What is Consent in a Rape Case?

Analyzing ConsentState v. Barela, 2015 UT 22

Consent is determined on a case by case basis.

In sex crime cases the court will analyze whether the victim gave consent.

This was an appeal from a conviction of Barela of first-degree rape at a Massage Envy studio. Barela challenged the sufficiency of the evidence to establish that the victim of the alleged rape did not consent to sex. The court then had to look at the statutes defining nonconsent in a rape charge. To determine whether the defendant was guilty of rape, the jury was given an instruction identifying four elements of rape: 1. The defendant, Robert K. Barela, 2. Intentionally or knowingly; 3. Had sexual intercourse with K.M.; 4. That said act of intercourse was without the consent of K.M. The instruction implied that the mens rea requirement (“intentionally or knowingly”) applied only to the act of sexual intercourse, and not to K.M.’s nonconsent. The court explains that this understanding of the instruction was conveyed by coupling the mens rea requirement with the sexual intercourse element, and by articulating the element of K.M.’s nonconsent without any apparent counterpart requirement of mens rea. Thus, the jury instruction mentioned above was in error.

Our criminal code requires proof of mens rea for each element of a non-strict liability crime, and the crime of rape requires proof not only that a defendant knowingly, intentionally, or recklessly had sexual intercourse, but also that he had the mens rea for the victim’s nonconsent. Barela believed that even if he was the instigator of the sex, he was not guilty of rape because he was reasonably mistaken, lacking mens rea, as to K.M.’s consent. This point was rejected by the court.

Generally, consent or nonconsent is decided on a case-by-case basis and is a fact-intensive, context-dependent issue that is long left in the hands of a jury. After paying close attention to the nonverbal cues given by the victim as well as a range of other elements, the jury in this case determined that K.M. freezing or not saying anything did not mean that she was consenting, and they found Barela guilty.

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