Consensual vs. Non-Consensual Sex: What’s the Difference?

Consent is a very critical element of any sexual encounter. Without it, you could face criminal charges resulting in devastating consequences that can last for a lifetime. Our sex crimes lawyers are here to help.

For that reason, it is vital that both you and your partner be clear about your intentions to engage in sex to avoid getting into legal trouble. While the definitions of consensual and non-consensual sex may seem obvious, it is not always so clear if you approach it from a legal perspective.

Consensual/Non-Consensual Sex

At face value, consensual sex is sex between two consenting adults. On the other hand, non-consensual sex is sex between two parties where one person does not expressly agree to have sex. Under such circumstances, the person who forces or coerces the other to engage in sex with them could face sexual abuse charges under the law in Michigan.

It is important to note, that when discussing consensual or non-consensual sex, the “sex” part involves sexual penetration. Please note that, under the law, oral sex is considered penetration.

If you are facing allegations of non-consensual sex, and you believe it was consensual, it would be best to engage a criminal sexual conduct attorney immediately. Not just any lawyer either, but a lawyer whose skills are unmatched in Michigan when it comes to sexual assault crimes.

What is Consent?

The law does its best to define consent. Ultimately, the judge, at the end of a trial, will instruct the jury on how to decide whether or not the victim consented to a sexual act or not. The judge will likely tell the jury that they should consider all of the evidence from the trial and that it may help to think about the following:

• Was the alleged victim free to leave and not take part in the sexual act?
• Did the defendant threaten the alleged victim with present or future injury?
• Did the defendant use force, violence, or coercion?
• Did the defendant display a weapon?
• Any other relevant circumstances that the judge allowed in as evidence.

There is no exact legal definition of consent. So, this article will turn to Planned Parenthood for the definition of consent.

Planned Parenthood defines sexual consent as an agreement between two people to participate in sexual activity. In its definition, Planned Parenthood shows consent as having five elements:

• It is freely given. Freely given means that every party in the sexual activity must voluntarily agree to sex without being pressured, manipulated, or under the influence of alcohol.
• It is reversible. Both parties have a right to withdraw consent at any stage in their sexual interaction, and the other party must respect the other’s decision to change their mind.
• It must be informed. A person can give informed consent based on agreed-upon sexual activities they are to engage in. For example, if there was an agreement to use a condom. Still, if the other party fails to use it, the original consent under the terms may not be applicable under the new circumstances.
• It must be enthusiastic. Even with consent to have sex, all parties can limit their consent to what they want to do, not what they feel they are expected to do or what the other party expects from them.
• It must be specific. Consent has to be specific. For example, an individual can engage in non-sexual dirty talk and making out, but not necessarily consent to the act of sex.

What is Non-Consent?

If the elements listed above are lacking in a sexual encounter, a person is at liberty to file a sexual abuse report with the police. Under Michigan law, unconsented sex offenses can be charged under different statutes, which may depend on the victim’s age, circumstances under which the offense happened, the relationship between the offender and victim, etc.

Under Michigan law, some possible charges for unconsented sex include:

• Criminal Sexual Conduct 1st Degree
• Criminal Sexual Conduct 2nd Degree
• Criminal Sexual Conduct 3rd Degree
• Criminal Sexual Conduct 4th Degree

Consensual Non-Consent – BDSM

You may not be alone if you find the phrase consensual non-consent new to you. Consensual non-consent (CNC) is a form of sexual interaction common in the BDSM community (Bondage, Discipline, Dominance & Submission). While there is “non-consent” in its name, it does not necessarily mean that the sexual interaction constitutes sexual abuse.

In a CNC sexual encounter, consenting adult partners agree to act out their forced sexual encounter fantasies. The sexual encounter involves having one person consent to a forced sexual encounter or some extreme form of sexual violence from the dominant partner. Both parties must agree ahead of time and clearly outline the activities they will engage in and those that are off-limits before the sexual encounter occurs.

For example, one person pretends to be a real attacker, while the other plays the victim. People who engage in non-consensual play see the power exchange or giving up power to derive pleasure from their sexual encounters. To other people, such acts could seem like self-harm, but in BDSM relationships, such fantasies of pain or forced sex are quite normal.

Under most circumstances, the submissive partner will usually have a set of safe words that they could use if they change their mind about the whole encounter, irrespective of the stage of the encounter. If a person agrees to play the part-time victim and invokes a safe word, the dominant party is obligated to terminate the consensual non-consent interaction.

Consensual Non-Consent is Not Sexual Abuse

Many people associate consensual non-consent sexual interaction with what is statutory rape when they hear it for the first time, but that does not mean it qualifies as rape. The encounter can have all elements of sexual abuse, with the only difference being that it is just a kink fantasy that the person playing the victim role consents to. This seemingly assaultive sexual encounter is sometimes known as “rape play” or “play rape.”

Some people may view “rape play” differently from consent non-consent sex. However, both involve forced sex fantasies, with the CNC session set to resemble real-life rape. “Rape play” is a BDSM term referring to sex acts only, while consensual non-consent sexual acts encompass all aspects of the encounter.

It has all the Hallmarks of Actual Rape

While consent is granted at the start of consensual non-consent activities, evidence of physical assault may be visible at the end of the experience, including bruises, minor scrapes, and even effects on a participant’s mental health, depending on the violence involved.

If a person in a BDSM relationship participates in consensual non-consent sex and decides to report the matter to the police, there would be almost no chance of getting off the hook for sexual abuse. Under such circumstances, you will need to talk to a skilled criminal defense attorney who is well-versed in sex crimes.

The BDSM world has adopted some philosophies to govern how both parties get into a CNC play encounter to ensure that everyone understands the risks they may expose themselves to while they role-play a CNC sexual scene. One of these philosophies is the risk-aware consensual kink (RACK).

RACK considers several aspects of a CNC encounter, including:

• All parties have consented to the activities of the CNC scene.
• Parties involved acknowledge and accept the risks involved in all the CNC scenes.
• Everyone takes personal responsibility for their role in the CNC session.

Is Consensual Non-Consent Sex Normal?

If you are hearing about CNC for the first time, it may come off as pretty abnormal. However, it is part of human sexuality. Many people harbor some rape fantasies from time to time but don’t get to actualize their CNC kink fantasies. In a study published in Psychology Today, 61% of females reported having had some form of rape fantasy at some time in their lives. 21% reported fantasizing about it quite often.

The study also cited that 54% of men and 68% of non-binary individuals have fantasized about forced sexual encounters, with 11.5% of men and 31% of non-binary individuals reporting having forced sex fantasies often.

You may think that the only people who would entertain the thought of consensual nonconsent sex are persons who have never been sexual assault victims. You may be surprised to learn, however, that some sexual assault survivors use a CNC situation to take back control of their lives.

Are Consensual Non-Consent Contracts Legal?

Many people engaging in sexual behavior choose to get into written contracts to declare that they fully understand what they are getting into and give their consent to do so. However, these contracts may not be legally binding and may not be used in court as evidence against sexual abuse charges. That means that a person can still report a case of sexual abuse after engaging in a consensual non-consent sexual encounter and you could end up being charged with a sexual abuse crime.

If you face sexual abuse charges under such circumstances and hope to get a fair outcome for your charges, you will want to hire a skilled attorney who solely focuses on sex crimes defending your case.

Limitations to a Consensual Relationship

Consent to sex has limitations based on the involved party’s age and power in the relationship.

The minimum age of consent in Michigan is 16, meaning engaging in a sexual act with persons under 16 years of age constitutes a crime. It is also possible to have two individuals under the age of 16 facing sex crimes for engaging in sex, even when it may be consensual.

Power relationships are also a factor that can limit consent and push the consent age under such circumstances to 18. For example, consent would not apply if a teacher engages in sex with a student below 18, but older than 15, unless they are legally married.

Contact Attorney Nicole Blank Becker for Your Unconsented Sex Charge

If you are accused of engaging in nonconsensual sex, it is important not to take the accusation or the charges lightly. Under Michigan law, the resulting consequences of being charged with a sexual assault crime can be life-altering, including a lengthy prison sentence and registration as a sex offender on the Michigan Sex Offender Registry list.

Beating a sex crime allegation requires working with a skilled, trained, and tough attorney who only focuses on sex crimes. Attorney Nicole Blank Becker of Blank Law, PC, is the attorney you should get on your team.

Nicole’s past years of experience as the Chief of the Sexual Abuse Unit and Child Abuse Unit ensures that she has a deep insight into all aspects of sexual crimes, putting her ahead of her peers. Do not entrust your future to just any lawyer when facing sex crimes, because your life depends on it. Hiring the right lawyer may mean the difference between a dismissal or not guilty verdict and living with a sexual offender tag for the rest of your life.

To hire Nicole Blank Becker on your case, contact Blank Law, PC, at (248) 515-6583 or reach us via this online form to book your free consultation.