What Does “Affirmative Consent” for Sexual Activity Mean?

If you’re facing sexual assault allegations, it’s imperative that you speak to a highly-skilled Texas sex crimes attorney before talking with anyone in law enforcement. Under state law, sexual assault involves any form of sexual activity that lacks consent or actively agreeing to engage in a sexual act with another person of legal age. Last year there were 569 rape offenses in Dallas, according to the Texas Department of Public Safety. 

At Madson Castello Law, we’ve seen significant benefits from clients contacting us at the first sign of an accusation. In some cases, we’ve been able to stop cases from being filed. Even if they are filed, we can help guide you in collecting critical evidence that’s often only available early in the process. In any sexual assault case involving another adult, showing consent is your best defense. In this effort, timing is crucial.

In every phase of the legal proceedings, we will advocate for you and guide you, ensuring that you receive fair treatment while also helping you address any problems that may have contributed to these frightening circumstances. We proudly represent clients in Dallas, Texas, and throughout the North Texas area, including Fort Worth, Denton, and McKinney.

Defining Affirmative Consent Under Texas Law

Consent is largely the most significant aspect of every sexual assault case involving adults. Generally, consent is defined as an agreement between two individuals to engage in sexual activity. More specifically, consent must be an understandable exchange of affirmative words or actions that indicate a person’s willingness to participate in mutually agreed-upon sexual activity. As you may guess, it can get complicated because:

  1. Consent must be specific.
  2. Consent must be is freely and actively given.
  3. Consent can be withdrawn at any time in a sexual encounter.

The legal age of consent in Texas is 17 years. At this age, a person is legally considered old enough to consent to sexual activity.

At every stage of sexual involvement, it is the responsibility of the initiator to obtain clear and affirmative responses from the partner.

Circumstances Where Belief of Consent Is Not Valid

Belief in consent will be considered invalid when:

  • The belief arose from the self-induced intoxication of the defendant.
  • The belief arose from the negligence, willful blindness, or recklessness of the defendant.
  • The defendant failed to take reasonable steps to ascertain that the victim was consenting affirmatively.

Essentially, affirmative consent usually plays a vital role in determining whether sexual activity was mutually agreed upon or considered sexual assault. While nonverbal consent is possible, it is best to obtain verbal, affirmative consent.

Avoiding Failure to Obtain Affirmative Consent

Showing consent can prove difficult for the defendant in a sexual assault case. For this reason, it is important to always obtain affirmative consent before and during sexual activity with another person. Below are some tips to avoid failure to obtain affirmative consent:

  • Ask your partner verbally for consent: “What would you like to do?” or “Do you want to have sex?”
  • Keep communicating with your partner through all sexual activity: “Are you enjoying this?”, “Are you comfortable?”, “Does it feel good?”, “What can I do to give you more pleasure?”
  • Communicate after sexual activity: “Did you enjoy it?” or “Do you want to stay here or return to your home?”
  • Realize that hooking up with someone you don’t know very well may lead to misunderstandings, misinterpretations, and a lack of awareness of an individual’s typical signs of intoxication.
  • Avoid sex when either participant is high or significantly drunk.
  • Check in with your partner periodically. Pay attention to whether a partner is highly responsive and actively participating in sexual activity.

If you’ve been accused of sexual assault you should speak with an experienced attorney immediately for proper guidance in protecting your rights.

How Madson Castello Law Can Help

Sexual assault allegations can cause devastating consequences to a person's quality of life, reputation, liberty, education, and future opportunities. If convicted, you could face lengthy imprisonment, massive fines, and registration as a sex offender. And since showing consent can prove both controversial and difficult, you need a caring, knowledgeable sex crimes defense attorney who knows how to fight for your case.

At Madson Castello Law, our attorneys have achieved great results for individuals who have been wrongly accused of sexual assault. We provide highly personalized attention to every client leveraging relationships we’ve built with law enforcement for many years as both prosecutors and defense attorneys. We’ll help you every step of the way and patiently work all angles of your case to achieve the best possible results. As we fight vigorously to protect your rights, we’ll also help you address any behaviors that may have contributed to your circumstances.

Contact Madson Castello Law today to schedule a simple case evaluation with criminal defense attorneys who care. We are proud to represent clients in Dallas, Texas, and throughout North Texas, including Fort Worth, Denton, and McKinney.


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