An effective defense to many Nevada criminal charges is that the victim consented to the alleged criminal behavior. For example, it is a defense to a rape charge that the accuser consented to the sexual intercourse.

Below, our Nevada criminal defense lawyers answer legal questions about the Nevada defense of consent. Continue reading to learn the definition of consent, common crimes it applies to, and how it helps you escape criminal liability.

“Consent” Defined

Consent is a defense to certain Nevada crimes. If you use the consent defense, you are not disputing that you behaved a certain way. Rather, you are claiming your behavior was not criminal because the “victim” willingly allowed it to happen.

Example: Max, a high roller, recently had his ban lifted from the Paris casino in Las Vegas. When Max goes into the Paris, a security guard – who has not been informed that the ban has been lifted – has Max arrested for trespass. Eventually Max’s charge gets dropped after prosecutors learn that he was permitted to be in Paris and that the security guard made a mistake.

A defense attorney in the above example does not have to argue that Max did not walk into the Paris. Instead, all the attorney has to show was that the Paris permitted Max to be there by having lifted the ban.

Note that consent can be either explicit or implied. Explicit consent is when someone states, gestures, or writes that they consent. Implied consent is assumed by the situation. For example, football players impliedly consent to be tackled during the course of a game.

Proving Consent

The easiest ways to try to prove consent in court is to show video footage, texts or emails where the victim in their own words gives valid consent. It also helps if there are eyewitnesses willing to testify that the victim consented.

In cases without witnesses or physical evidence, proving consent often comes down to your word against the alleged victim’s. So your defense attorney may try to undermine the victim’s credibility by pointing out inconsistencies in their testimony.

“Ineffective Consent”

“Ineffective consent” is when a victim consents to a crime under circumstances that make their consent legally invalid. The three main scenarios of ineffective consent are:

1) The victim is not mentally competent enough to consent: This includes people with severe mental disabilities or mental illnesses as well as people who are sleeping, unconscious or intoxicated at the time of the alleged crime.

2) The victim was deceived or forced to consent: Consent is invalid if the person was tricked or threatened to agree to something they may have otherwise refused.

3) The victim is not old enough to consent: Obviously, this includes infants and young children. Sex is automatically considered rape when an adult has sex with a child under sixteen even if the child agreed to it (read more about the age of consent in next question).

In short, consent is not a valid defense to a crime in Nevada when circumstances made the victim incapable of exercising reasonable judgment.

Age of consent

Sixteen in Nevada’s age of consent. Therefore children fifteen years old and younger may not legally consent to have sex.  Statutory sexual seduction (statutory rape) is when adults eighteen or older have sex with children under sixteen.

Example: Debbie, who’s a child prodigy, begins UNR at age fifteen. She and Dan, a twenty-year-old in her dorm, have sex one night.  If caught, Dan could be booked at the Washoe County Detention Facility for statutory rape.

Note that it is irrelevant in the above example that Debbie wanted to have sex. Nor would it matter if Debbie initiated the sex. Dan is liable for statutory rape purely because of Debbie’s age.

Also note that Nevada’s “Romeo and Juliet exception” allows 14- or 15-year-old minors to have consensual sex with people less than four years older than them.

Finally, note that consent is also not a defense to incest. Marrying a family member or having sex with a family member is illegal even if both people want to do it.

Learn more about Nevada sex crimes.

Consent as a Defense

One of the most frequent uses of the consent defense occurs in cases involving sexual assault. If the prosecution cannot prove that the sex was against the victim’s will, then the charge should be dropped.

Consent is also frequently used as a defense to theft crimes such as grand larceny. If you are charged with stealing, you should get the case dismissed if the owner consented to you having the property.

Other common Nevada crimes where consent may be an effective defense include:

• battery
• false imprisonment
• kidnapping
• open or gross lewdness
• transmitting HIV
• wiretapping
• trespass
• extortion

Note that consent is often a matter of degree, and that a “victim” may consent to some conduct but not to others. For example, boxers do not break the law by punching each other because punches fall within the rules of the game. However, a boxer could be criminally liable if they do something excessively violent or against the rules such as punching the opponent between rounds.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Moral Limits of Consent as a Defense in the Criminal Law – New Criminal Law Review.
• Consent in the Criminal Law – Harvard Law Review.
• What Is Consent and Is It Important? – Buffalo Criminal Law Review.
• Consent Confusion – Cardozo Law Review.
• Consent: What It Means and Why It’s Time to Require It – University of Pacific Law Review.