Neil S. Ruskin

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Did your partner consent to your actions?

Like most in New York, you likely never even considered the possibility of having to defend yourself against accusations of sexual assault. Yet you might suprised how easily a romantic encounter that you believed to be completely consensual later results in such a scenario. The fear that you and many others in such a situation may have is that the benefit of the doubt often goes to the accuser (after all, why would he or she make up such a thing, right?). Yet all sexual assault cases do not automatically come down to a scenario of "he said, she said." Rather, the burden of proof can often lie with both sides. 

The central issue of many sexual assualt cases comes down to consent (as in, whether you had it or not). Some may believe this to be open to interpretation, yet the law is actually quite clear on what it determines to be consent. Section 130.05 of New York's Penal Law defines as lack of consent as being: 

  • You compelling a partner to act by force
  • Your partner being incapacitated (and thus unable to consent)
  • Your partner not expressly or impliedly acquiescing to your advances (in the case of touching in a sexual nature)
  • Your partner clearly not consenting to an action (in the case of intercourse)

When judging a lack of consent, the law believes it to not be present when the words or actions of the alleged victim would have caused any reasonable person in your situation to understand that such action was not welcomed. Thus, one saying that he or she was too nervous or afraid to speak up against your advances may not meet the standard of having shown or implied a lack of consent. 

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