What to Know About Consent as a Defense to Sexual Assault Charges in New Jersey

Posted April 12th, 2024 by .

Categories: Criminal Defense.

Sexual assault is a very serious criminal offense. In New Jersey, it is a felony offense that carries significant prison time. Any person facing a sexual assault charge is innocent until proven guilty. A charge can be defended—including on the grounds that assault is given. In this article, our Jersey City sex crimes defense lawyer provides an overview of the key points to know about consent as a defense to sexual assault charges in New Jersey. 

Consent is a Complete Defense to Sexual Assault in New Jersey

In New Jersey, the law recognizes consent as a full defense against the charge of sexual assault. In other words, if both parties involved in a sexual act have willingly and knowingly agreed to participate, the act cannot be considered sexual assault under the law. The prosecution has the burden of proving that consent was not given by the alleged victim in order to obtain a conviction. 

Defining Consent in New Jersey: Affirmative and Freely Given

How is consent defined in New Jersey? Case law states that consent must be both “affirmative” and “freely given” in order to be legally valid. be assumed from silence, the absence of resistance, or a previous sexual relationship. Instead, consent must be communicated through words and/or actions that create mutually understandable permission for the specific sexual act. A key point to remember is that consent must be ongoing and can be revoked at any time.

Consent is Not Given in the Following Scenarios:

Under New Jersey law (N.J. Stat. Ann. § 2C:2-10), legal consent to a sexual act is not valid if any of the following three factors are present: 

  • Cannot Consent (Youth or Impairment): Consent cannot be legally given by individuals who are below the age of consent or those who are mentally impaired, whether due to disability, illness, or the influence of substances. New Jersey law protects minors and those who cannot make informed decisions about sexual activities due to their mental condition. 
  • Intoxication (Legal Incompetence): In New Jersey, an individual who is intoxicated to the point of legal incompetence cannot give consent. This recognizes the altered judgment and diminished capacity to make informed decisions under the influence of alcohol or drugs. These cases can be especially complicated. 
  • Force or Other Duress: The use of physical force, threats, intimidation, or coercion negates consent. New Jersey law clearly states that consent obtained through these means is not valid. This includes situations where an individual agrees to sexual activity under duress, fearing retaliation, harm, or other adverse consequences. 

Contact Our Jersey City Sexual Assault Defense Lawyer Today

At the Law Offices of Anthony Carbone, our New Jersey sex crimes defense attorney has the skills  and experience to defend sexual assault cases. If you have any questions about raising consent as a defense to a sexual assault charge, we are here to help. Contact us for a confidential case review. With an office in Jersey City, we provide criminal defense services throughout the region.

Share this Post

Questions about your criminal defense case?

Contact Us Today
Live Chat
Celebrating 35 Years in Practice!

Contact Us Today for a Free Consultation

    Back to Top
    Live Chat