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Consent as an Affirmative Defense in Texas

Defending Criminal Charges with the Affirmative Defense of Consent in Houston, Texas

You should not be punished if, at the time you allegedly committed a crime, you had the consent of the alleged victim. In Texas, you have the right to defend yourself by arguing that your actions were justifiable, given the circumstances. Successfully arguing the defense of consent can help to minimize the consequences of your arrest. Contact Houston criminal defense lawyer Doug Murphy to find out how he can help to protect your future.

Affirmative Defenses in Texas

Do you believe that your actions, while ordinarily criminal, were justifiable under the circumstances? Did you honestly believe that you had your alleged victim's consent to act the way you did? Instead of denying that you committed a crime, you can assert the affirmative defense of consent.

When you argue an affirmative defense, you admit that you committed a crime. However, you immediately follow that admission with an explanation of why your actions were justifiable at that moment in time. Affirmative defenses, when argued successfully, can help you to escape criminal liability for your actions.

Defining Consent

Consent is an essential element of many criminal acts in Texas. In other words, you cannot be convicted of a crime if the person you're accused of harming willingly consented to your behavior and/or activity.

What exactly is "consent" for the purposes of the law? Texas law defines consent to mean "assent, whether direct or apparent." In other words, consent means expressing approval or agreement in some way.

Direct Consent

Consent can be direct or apparent. Direct consent exists when another person makes it abundantly clear that they agree to (a) participate in some activity or (b) allow you to engage in some behavior. In most cases, direct consent is given either verbally or in writing. There should be no doubt that a person is giving consent when it is given directly.

Apparent Consent

Apparent consent, which is also known as implied consent, is an assumption that a person has agreed to something. This assumption is based on inferences that are drawn from their behavior and the circumstances of a specific situation. Most consent-based issues involve situations where a person mistakenly, but reasonably, believed that they had apparent consent.

Consent as Defense to Assault

In Texas, certain assault crimes may be excusable if you had effective consent or reasonably believed that the alleged victim consented to your conduct. Specifically, Texas Penal Code §22.06 explains that consent can be a defense to assault, aggravated assault, or deadly conduct if:

  1. The conduct did not threaten or inflict serious bodily injury, or
  2. The victim knew that the conduct was a risk of their occupation, medical treatment, or recognized scientific experiment.

Effective Consent

What is effective consent, and how is it different from other types of consent? Effective consent does not come from the victim. Instead, effective consent comes from a person who is authorized to make decisions on the victim's behalf. Parents and individuals acting under the authority of a power of attorney may have the right to give effective consent on behalf of another person.

Reasonable Belief

How do you know if your belief that you had consent was reasonable? This is a subjective issue of fact that will be left up to the jury. The jury will have to evaluate any evidence, testimony, and legal arguments that are relevant to your specific situation.

The best way to determine whether something was reasonable is to ask whether an objectively reasonable person acting under similar circumstances would have behaved in the same way. In other words, would another person have also believed that the victim provided consent?

Limits to the Defense of Consent

While consent can be a defense to criminal behavior, there are limits to the situations in which it can be argued. There are certain circumstances under which consent (a) can never exist or (b) cannot be a justification for your actions.

Statutory Rape and the Age of Consent

The age of consent in Texas is 17. This means that anyone under the age of 17 is legally incapable of agreeing to engage in sexual activity. Even if the minor verbally agrees to have sex, or willingly pursues sex, there is no legal consent. As a result, consent can never be a lawful defense to sexual activity with a minor. That is, of course, unless the minor is your lawful spouse.

Initiations or Street Gang Activity

Consent cannot be a lawful defense to acts of assault or deadly conduct if that behavior is committed as part of an initiation to or in furtherance of street gang activity. In other words, if you assault another person who is willingly taking the abuse to join or continue to be part of a street gang, your actions cannot be justified.

Fraud, Force, or Threats

Consent can only exist if it is given willingly. If a victim is forced to agree to some conduct because they are being threatened, forced, or intimidated, consent does not exist.


Consent requires a person to willfully agree to conduct while understanding the consequences of the proposed conduct. Whether or not consent exists can become complicated when a victim is under the influence of drugs or alcohol. Voluntary intoxication may not impair a person's ability to agree to participate and/or allow some activity. If a person becomes intoxicated against his or her will, however, consent will likely not exist.

Mental Incapacity

Again, a person can only give consent when they understand the nature of that agreement. If a person suffers from a mental disability, he or she may not fully appreciate the results and consequences of the situation. If there is evidence to show that you knew or should have known a person suffered from a mental disability, arguments of consent may not be successful.

Contact Our Harris County Criminal Defense Lawyer for Consent

Have you been accused of a crime of assault in Texas? Did you honestly believe that you acted with the consent of the alleged victim? If so, you have the right to argue that your actions were justifiable under the circumstances. Contact the Doug Murphy Law Firm, P.C. to find out how we can help you argue the defense of consent.

Our Houston criminal defense attorneys know that a criminal conviction for assault puts your future in serious jeopardy. When you hire us to handle your defense, you can be certain that we will aggressively fight to protect your rights. Call us today at 713-229-8333 or contact us online to schedule a free case evaluation with our legal team and learn more.

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