As the new school term starts in both college and high school, parents and students need to discuss what type of sexual activity might lead to criminal charges. Parents of students who don’t attend college should also discuss with their children what sexual activity may be illegal. While there are many things to discuss such as physical safety, safe sex, respect, dignity, drugs, alcohol, and other issues – one important topic is why consent is critical.
In Maryland, if one person does not consent to sexual activity, the other person may be face charges of rape and sexual offenses which may result in criminal charges. Students may also face disciplinary actions.
How do Maryland state laws view the issue of consent?
There are different sex crimes in Maryland including:
- Section 3-303 – Rape in the First Degree
- Section 3-304 – Rape in the Second Degree
- Section 3-307 – Sexual Offense in the Third Degree
- Section 3-308 – Sexual Offense in the Fourth Degree
- Section 3-309 – Attempted Rape in the First Degree
- Section 3-310 – Attempted Rape in the Second Degree
Generally, consent is a defense to these crimes – but there are many conditions that apply. Some of these conditions are specifically set forth in the statutes.
The statutory conditions generally include:
- Prohibiting sexual contact with minors under a specific age
- Prohibiting sexual contact with anyone of any age who has a cognitive impairment, a mental incapacity, or is physically helpless and the person performing the act knows or should reasonably know of the other person’s condition. These terms are specifically defined in Maryland criminal statute 3-301.
Sex between someone in a position of authority and a student
Maryland makes it illegal for anyone in a “position of authority” to engage in sexual contact with another person without their consent.
A position of authority is anyone 21 or older who is:
- Employed by or under contract with a public or private preschool, elementary school, or secondary school
- Because of the person’s position or occupation, exercises supervision over a minor who attends the school
Examples include “a principal, vice principal, teacher, coach, or school counselor at a public or private preschool, elementary school, or secondary school.”
How to be certain another student or person gives their consent
The Maryland statutes do not specifically define consent. The burden will be on the accused to show that there was consent.
According to the Rape Abuse Incest National Network, consent is an “ongoing process of discussing boundaries.” Consent should be freely communicated and should be clear. In most cases, consent should be verbal and affirmative.
Generally, a student or another person cannot give consent if they are:
- Incapacitated by drugs or alcohol
Consent due to any force, pressure, or threat is not considered consent because it’s not freely given. Generally, a person who is not in a position of authority, such as a student, cannot freely give consent to a person (such as a teacher or employer) in a position of authority.
How is consent expressed?
Communication is the essence of consent. Each time there is a new type of sexual activity, consent is required. Prior sexual relations are not consent to new sexual relations. Kissing someone is not giving consent to remove their clothes. Each partner in the sexual activity should discuss the boundaries and expectations they expect.
Your son, daughter, or the person they are having sexual contact with can withdraw their consent at any time for any reason. Changing the boundaries can be difficult to do verbally, which means both partners need to be alert to non-verbal clues. Generally, any escalation or change in sexual activity should be discussed.
What is enthusiastic consent?
RAINN states that a new view of consent is called “enthusiastic consent,” This view requires the “presence of a ‘yes’ rather than the absence of a “no.” Enthusiastic consent can include body language such as nodding, smiling, and maintaining eye contact – but they’re generally not enough for a determination of consent without verbal confirmation also being present.
What are some types of enthusiastic consent?
Examples of enthusiastic consent include:
- Asking permission before you change the type or degree of sexual activity with phrases like “Is this OK?”
- Confirming that there is reciprocal interest before initiating any physical touch.
- Letting your partner know that you can stop at any time.
- Periodically checking in with your partner, such as asking, “Is this still okay?”
- Providing positive feedback when you’re comfortable with an activity.
- Explicitly agreeing to certain activities, either by saying “yes” or another affirmative statement, like “I’m open to trying.”
- Using physical cues to let the other person know you’re comfortable taking things to the next level.
It’s important to remember, per RAINN:
Physiological responses like an erection, lubrication, arousal, or orgasm are involuntary, meaning your body might react one way even when you are not consenting to the activity. Sometimes perpetrators will use the fact that these physiological responses occur to maintain secrecy or minimize a survivor’s experience by using phrases such as, “You know you liked it.” In no way does a physiological response mean that you consented to what happened. If you have been sexually abused or assaulted, it is not your fault.
What types of conduct are NOT consent?
Children of parents need to know that consent does not apply in the following situations:
When the perpetrator:
- Refuses to acknowledge “NO”
- Assumes that flirting, kissing, or wearing certain clothes is an invitation for further sexual activity
- Continues when a partner is visibly upset, nonresponsive, or disengaged
- Uses force or intimidation
- Assumes prior sexual activity is consent to current sexual activity
When the other person:
- Is under the age of legal consent
- Is incapacitated due to drugs or alcohol
Parents and children need to understand when consent cannot be given due to a person’s lack of age, capacity, or other reasons. Parents and children also need to understand how to express that they are not giving consent and how to understand when a partner is not consenting. Without consent, students, teenagers, and young adults who engage in sexual activity may be charged with serious Maryland sex crimes. Carey Law Office is experienced at asserting all possible defenses, including consent, when someone has been charged with a sex crime. We meet defendants in Bowie, Crofton, and Owings. We also serve Calvert County. Call our offices or contact us today to schedule a consultation.
My name is Joe Carey, and I am the founder and principal attorney of the Carey Law Office. I have lived in Maryland my entire life. I grew up in a small town in Prince George’s County and, with the help of my partner in life, Nancy, I raised my family here: three exceptional children (a son and two daughters), and two goofy, spoiled black Labrador Retrievers. Learn More