Christopher Estoll and The Datz Law Firm handle a significant number of serious cases alleging sexual assault as sex assault attorneys. Each of those cases is unique, and we take an individualized approach to achieve a positive outcome from an incredibly scary and difficult accusation.
One common form of sexual assault arises from a claim that one party did not consent to the sexual act. Much has been written about the concept of consent and the intricacies of confirming that an act is consensual amidst the passions of a sexual act. There is even a great YouTube video on looking at consent as if you’re making someone tea. Comedian Taylor Tomlinson has a great line in her first special where she clarifies:
“…consent is a noise she makes, not a feeling that you feel.”
In this quote, Taylor emphasizes the difference between objective evidence and subjective experience. The “noise she makes” is objective evidence that she wants to have sex. The “feeling you feel” is a subjective experience. It is your perception of what the other person wants, not her actually expressing consent.
Objective Evidence and Subjective Experience
As sex assault attorneys, we know that sexual assault cases often rely on the distinction between what each party thought and the actions that each party actually took. Sometimes that means that the suspect ignored objective indications that the victim did not wish to participate in a sexual encounter. These objective indications could be the actual words: “no, I don’t want to have sex” or “yes, I do want to have sex”. Or they could be more subtle, like “the noise she makes” in the quote above. In the cases, the suspect’s subjective belief and desire overcame the will of the victim and resulted in an accusation of sexual assault.
However, the opposite situation can also occur, where the alleged victim did not want to consent to a sexual experience, but didn’t take any action to communicate their objection to the suspect. In that case, both parties made assumptions about the other, but there is very little objective evidence to demonstrate that either of them is at fault for the failure to communicate.
In the ideal situation, both both parties clearly and objectively express their enthusiastic consent and intentions. This communication can occur verbally or physically and protects both parties. One good example is to allow your partner to remove their own clothes to indicate their desire to move forward. However, it is also important to continue to listen and respond to your partner – as either party can stop the proceedings at any time. Even if consent is given verbally moments earlier, there is no obligation for either party to continue.
As sex assault attorneys, we will work with you to determine what happened and achieve a fair outcome.
