At Stewart Miller Simmons Trial Attorneys, we help sexual assault victims sue their abusers for financial compensation. These are civil suits, not criminal. Regardless of whether the state filed criminal charges, we can seek monetary damages from the person who sexually assaulted you.
Consent is a defense in a civil sexual assault case, just as it is in a criminal case. However, consent sometimes works a little differently in civil suits, as our sexual assault lawyers explain below. We encourage all assault victims to contact our office to discuss whether they have a legal right to bring a lawsuit. These are challenging cases, but we are committed to holding abusers accountable.
Georgia’s Law on Consent
OCGA § 51-11-2 explains the effect of consent in personal injury cases. It says that no tort is committed when consent is freely given and not obtained by fraud, so long as the person giving consent was of “sound mind.”
Unsurprisingly, many defendants accused of sexual assault raise consent as a defense. Consent can explain away uncomfortable evidence that they had sex with the victim, such as semen or hairs. Instead of admitting they raped the victim, they claim the victim consented.
We believe in preparing our clients for what is likely to happen when they accuse someone of sexual assault. Do not be surprised if your assailant claims you consented to the encounter.
Although easy to raise, consent isn’t always easy to prove. In fact, we can often show that you did not consent.
Was Consent Freely Given?
Consent isn’t a defense if the consent was not freely given. For example, you could have feared for your life if the assailant brandished a gun or knife while assaulting you.
Someone with a gun pointed to them is not “freely” consenting, even if they stop fighting the attack or passively accept what is happening. The same is true if your abuser used violent threats to obtain compliance.
In other situations, a person could be dependent on a caregiver, so their consent is not freely given, either. Let us review the circumstances.
Were You of Sound Mind?
Consent isn’t a defense if you were not of sound mind during the attack. For example, you could have been drunk or high on drugs. This is a common occurrence with teens and young adults. If you are intoxicated, you are not thinking clearly, so even agreeing to sex might not count as consent.
Other victims who cannot consent are those with mental disabilities or incapacity. Someone who had sex with a person with a mental defect possibly assaulted them because consent was impossible to give.
Were You Unconscious?
There is no consent when you are not even awake. You might have fallen asleep with someone in bed, only to wake up in the middle of a sexual assault. In that situation, you could defeat the consent defense and maintain a civil case for monetary damages.
Were You Defrauded?
You might have a legal case for assault if someone impersonated another individual to seduce you. That is a type of fraud which might render consent ineffective as a defense.
Were You Underage?
In Georgia, the age of consent is 16. It is illegal for an adult to have sex with someone under this age, even if the victim was willing or made advances. A defendant commits the crime of statutory rape.
With personal injury cases (torts), however, consent works a little differently. There isn’t the same bright-line rule. Georgia law recognizes that someone under 16 might be able to consent when it comes to a civil lawsuit for assault. A Court of Appeals decision made this point in 1999. The court reviewed a sexual assault civil case where a 16-year-old boy allegedly had sex with a 15-year-old girl.
The Court of Appeals noted that consent differs in the criminal context compared to the civil context. With a civil case, a minor can consent if they had the “capacity” to weigh the risks and benefits of the activity. The court said that a victim who is under 16 might be able to consent, depending on their development. However, this case involved two teens, which is a factor in the analysis.
At the same time, some children are too young to consent, and Georgia recognizes that, too. Everything depends on the facts. There is no hard-and-fast rule when a minor can consent for purposes of a civil suit.
If you were a minor when assaulted, you should still call our office. There’s a good chance we can use your young age to your advantage. Furthermore, your age matters when determining whether you were coerced into sexual relations by an adult, who probably had power over you.
We Know How to Win Sexual Assault Cases
Many defendants raise consent as a defense because it helps explain away certain pieces of evidence, such as semen. Defendants don’t always win when they claim consent, however. Many of our clients were young children molested by teachers, doctors, and camp counselors. They were too young to consent. Other clients are raped as adults, and we have proof, including witnesses or date rape drugs in their bloodstream.
Let’s talk about what happened in a safe, private setting. Based on what you share, we can provide a preliminary analysis of the strength of your claim. Our firm has successfully negotiated settlements when the evidence is strong that you were victimized. A defendant might not even fight all the way to court but instead agree to an out-of-court settlement.
Speak with an Atlanta Sexual Assault Attorney
Georgia’s laws regarding the deadline for filing a sexual assault case have been in flux over the past decade. Do not assume it’s too late to bring a lawsuit against someone for any type of sexual assault, including molestation as a child. It is possible to hold abusers accountable for their criminal behavior. But you still deserve experienced legal help to bring the strongest case possible and receive fair compensation for the abuse.
Call (404) 529-3476 to speak confidentially about your case with an attorney at our firm.