While the government must prove that there was sexual contact or penetration, for most sexual assault cases the critical issue is consent. The Texas Penal Code enumerates eleven scenarios that either delineate lack of -- or serve to vitiate -- consent:
(1)the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(
4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
When breaking down the fact scenarios into groups, one would find the following categories:
Violence or threat: (1), (2), (7);
Exploitation of mental condition: (3), (4), (5);
Exploitation of leadership role: (8), (9), (10), (11); and,
Intentional impairment: (6).
Interestingly, there is no bright line example of, “she said no.” Arguably, the most complicated cases involve situations where she believes she said, “no," he didn’t think that’s what she said, and they continue sexual relations without force or violence or threat. Later that evening – or days later – one party believes that the encounter was not consensual, but there was little to no communication in the midst of sexual activity.
In illustrating the importance of syntax, consider the following statements said in the middle of sexual activity:
“Don’t stop!”
“Don’t. Stop!”
What is said and what is heard often depends upon the situation, the emotional state of speaker, and the emotional state of the listener. One reason that the legislature may not have defined lack of consent as merely saying, “the person said no” is that it becomes very complicated when a person says no, but continues with sexual activity. Or changes their mind after saying no. By creating a series of bright line rules, the difference between feeling unheard or assaulted is legally distinct from the legal requirements of proving sexual assault. Regardless, both parties will likely need counseling, intervention, and communication with a person who trusts and supports them.
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