What is Consent to Having Sex?

In 2006, the Washington State Legislature created the Sexual Assault Protection Order Act (SAPOA), chapter 7.90 RCW, in which a victim of sexual assault could obtain protection from further contact with the perpetrator.  An element that must be shown by the party seeking the order is that the act complained of was not consensual.  But what if both parties were highly inebriated and the complainant says she cannot remember a thing and the defendant says that she verbally consented?

This was discussed last month in Duvall v. Nelson.  A copy of the slip opinion is here.  The Court of Appeals, Division I, held that the defendant must show that the victim had the legal mental capacity to give consent at the time of the alleged consent.  An incapacitated drunken person cannot legally consent.

What is Consent to Having Sex?

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