Proving lack of consent has two components. First, the victim must be legally capable of giving consent. If the victim is under the age of consent or is mentally or intellectually impaired because of a permanent condition, intoxication, or drugs, the prosecution does not have to prove lack of consent in many jurisdictions. 1 Sexual intercourse with a victim under the age of consent is a separate crime, statutory rape, which is discussed shortly. The second component to proving lack of consent is separating true consent from consent rendered involuntarily. Involuntary consent is present in two situations. First, if the victim consents to the defendant’s act because of fraud or trickery—for example, when the victim is unaware of the nature of the act of sexual intercourse—the consent is involuntary. A victim is generally unaware of the nature of the act of sexual intercourse when a doctor shams a medical procedure. 2 This is calledfraud in the factum. Fraud in the inducement, which is a fraudulent representation as to the circumstances accompanying the sexual conduct, does not render the consent involuntary in many jurisdictions. An example of fraud in the inducement is a defendant’s false statement that the sexual intercourse will curea medical condition. 3
A more common example of involuntary consent is when the victim consents to the defendant’s act because of force or threat of force. The prosecution generally proves this type of consent is involuntary by introducing evidence of the victim’s resistance.
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