When is Consent a Defense to A Criminal Sexual Conduct Charge in Minnesota?

Many people mistakenly believe that consent is always a defense that persons charged with criminal sexual conduct can raise during trial. However, there are particular circumstances outlined in state statutes where defendants in these cases are barred from raising consent as a defense. The maze of laws, procedural rules, and potential defenses in the context of sex crime prosecution is complex, and individuals charged with this kind of crime would benefit from the assistance of seasoned counsel in implementing the most effective defense strategy possible.

Minnesota statutes classify sex crimes from first through fifth degree criminal sexual conduct with corresponding levels of severity of penalties imposed upon conviction. In the most general sense, first and third degree criminal sexual conduct involves sexual penetration while the rest involve sexual contact without penetration. Penetration includes explicit sexual acts, but may also include any intrusion, however slight, of the complainant's body by any part of the defendant's body or by an object used by the defendant for that purpose. Contact is defined as the intentional touching of a victim's intimate parts by a defendant. Notably, if a victim was coerced into touching the intimate parts of the defendant, a complainant, or another third party, that also constitutes sexual contact.

Persons are usually charged with first and second degree criminal sexual conduct if the conduct in question involves personal injury to the victim or if the defendant used or threatened use of force, violence, or a dangerous weapon. These charges may also be brought if the victim is extremely young, specifically less than 13 years old and the defendant is more than 36 months older than the complainant, or the victim is between 13 and 16 years old and the defendant is more than 48 months older and in a position of authority. First degree criminal sexual conduct may carry maximum penalties of 30 years imprisonment and up to a $40,000 fine, while second degree sexual conduct has a maximum prison term of 25 years and a fine not exceeding $35,000. The Minnesota Sentencing Guidelines provides a recommended sentence of 144 months of imprisonment for a first degree criminal sexual conduct conviction, and 90 months for a second degree conviction.

As to third, fourth, and fifth degree criminal sexual conduct, these charges usually involve less serious actions and arise in situations where the victim did not consent, was too young, or was statutorily incapable of providing voluntary consent. Third degree criminal sexual conduct is a sexual penetration offense and may carry a maximum prison term of 15 years with up to a $30,000 fine. The sentencing guidelines recommend a 48-month prison term for a third degree conviction. A fourth degree offense involves sexual contact and may carry a 10-year maximum prison term and a fine of up to $20,000, and the guidelines recommend a 24-month stayed sentence with probation. Finally, the least severe sex crime defined by statute is fifth degree criminal sexual conduct, which is a gross misdemeanor that involves sexual contact and certain lewd conduct. It carries a maximum one-year prison sentence with up to a $3,000 fine, and the guidelines recommend a 15-month stayed sentence with probation.

Limitations to Consent

Under Minnesota law, consent is defined as words or actions by a person indicating a freely given present agreement to perform a particular sexual act with an individual. The issue of whether the complainant consented to the sexual conduct that forms the basis of a criminal charge is likely the central issue in the prosecution of a sex crime. This is particularly the case since most charges of criminal sexual conduct involve people who know each other. Defendants rightly often raise consent as a defense and will aggressively argue against any claimed coercion or lack of consent.

However, there are particular situations when consent, by statute, is barred as a defense even when the victim actually provided consent. These situations include:

  • Encounters where the victim is under a particular age or when the defendant is older than the young victim by a specified number of months;
  • When the defendant holds a position of authority over the young victim and is older by a specified number of months;
  • When there is a significant relationship between the defendant and the victim, such as when the defendant is a parent, stepparent, or guardian, related by blood as specified by law, or lives intermittently or regularly in the same dwelling as the victim and is not the victim's spouse;
  • Other situations of special trust, such as when the defendant is a member of clergy and the victim sought spiritual advice from him or her, or the defendant is a psychotherapist from whom the victim was receiving counselling and treatment.
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