English: In the United States, some states recognize penetrative sex without consent by the victim and without the use of force by the perpetrator as a crime (usually called 'rape'). Other states do not recognize this as a crime; their laws stipulate that the perpetrator must have used some kind of force (physical violence (that results in demonstrable physical injury), threats against the victim or a third party, or some other form of coercion) in order for such nonconsensual penetrative sex to amount to a crime.

Not shown: the FBI, the United States Code, the Uniform Code of Military Justice (UCMJ) and American Samoa recognize nonconsensual penetrative sex as a crime. UCMJ: U.S. Code § 920.Art. 120.b2A: 'Any person subject to this chapter who commits a sexual act [which may include various forms of penetration] upon another person without the consent of the other person is guilty of sexual assault and shall be punished as a court-martial may direct.'

Commentary

In some states' laws, consent does play a role, but in a limited manner or in exceptional circumstances, so that in the end the legislation remains coercion-based.

• Arizona: The Arizona Revised Statutes state in §13-1406: 'A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.'^[1] However, §13-1401 limits the definition of the phrase "without consent" to scenarios in which the victim is 'coerced by the immediate use or threatened use of force' (a), incapable of consenting for various reasons (b), or 'intentionally deceived' about the act or the perpetrator's identity (c, d).^[2] Therefore, there is no freely given or affirmative consent under Arizonan law.^[3]
• California: In the California Penal Code, there are separate criminal offenses for non-spousal rape (Section 261) and for spousal rape (Section 262);^[4] the latter continues to be treated as a less serious crime.^[5]
  • Having sex with one's spouse without their consent is not recognized as a crime.^[5] Section 262 requires that, if spouse A does not want to have sex, they need to resist the forceful sexual advances of spouse B, unless A is 'prevented from resisting by any controlled substance', or 'incapable of resisting' because A is unconscious or asleep, unaware of the sexual act occurring, or deceived by 'the perpetrator's fraud in fact', in which cases the sexual act does amount to rape.^[4]
  • Having sex with someone other than one's spouse without their consent is recognized as a crime.^[5] However, Section 261 indicates that this only applies if the victim is 'incapable [of giving legal consent] because of a mental disorder or developmental or physical disability'. Otherwise, the victim is required to resist the forceful sexual advances of the perpetrator, unless the victim is 'prevented from resisting by any controlled substance', or 'incapable of resisting' because A is unconscious or asleep, unaware of the sexual act occurring, or deceived by 'the perpetrator's fraud in fact' or 'the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose', in which cases the sexual act does amount to rape.^[4]
  • Since January 1, 2019, Section 261.6 defines "consent" as 'positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.' Sections 261.6 and 261.7 stipulate that, wherever 'consent is at issue' under Section 261, 262, 286, 287, or 289, or former Section 288a, 'a current or previous dating or marital relationship shall not be sufficient to constitute consent', neither is 'evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device'.^[4]
• Florida: Section 794.011 of the Florida Statutes defines "consent" as 'intelligent, knowing, and voluntary consent and does not include coerced submission. "Consent" shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.' Any sexual act performed on a person without their freely given or affirmative consent is punishable as 'sexual battery' to various degrees (depending on the perpetrator's and victim's ages, and whether no, some, or potentially deadly physical force or coercion was used).^[6][7]
• Georgia: The Georgia Code does not define consent,^[8] but under '§ 16-6-22.1. Sexual Battery', '[a] person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.'^[9] The act of intentionally putting 'intimate parts' in contact with another person's mouth without that person's consent is indirectly criminalised by '§ 16-6-2.a Sodomy', which prohibits 'any sexual act involving the sex organs of one person and the mouth or anus of another'; Powell v. State (1998) and Lawrence v. Texas (2003) determined that these acts were only illegal if one of the participants did not consent.^[10]
  Under '§ 16-6-1. Rape', "rape" is treated as a separate crime, namely 'any penetration of the female sex organ by the male sex organ' (also called 'carnal knowledge') against 'a female forcibly and against her will; or a female who is less than ten years of age'.^[11] The punishment for this coercion-based crime is more severe than for 'sexual battery',^[11][9] and consent does not play a role under § 16-6-1.^[8]
• Illinois: According to the 2012 Criminal Code of the Illinois Compiled Statutes, Section 720 ILCS 5/11-1.70, "consent" is 'a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent. A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct.' However, the lack of consent is not sufficient to prosecute anyone for a sex crime (except in very specific cases in which the victim is deemed incapable of consenting, namely Section 11-1.20 (a)(2), Section 11-1.50.(a)(2), Section 11-9.2.(e), and Section 11-9.5.(c)), making Illinois' rape legislation coercion-based (Section 11-1.20 (a)(1)).^[12][13]
• Indiana: The Indiana Code does not define consent (§35-31.5-2). Consent only comes up in situations where the other person is deemed incapable of consenting (§35-42-4-1 to 14); there is no freely given or affirmative consent.^[14][15]
• Massachusetts: The General Laws of Massachusetts do not specifically define consent, and there is no freely given or affirmative consent.^[16] Rape can only be committed by having "(unnatural) sexual intercourse with a person" through 'compulsion' plus 'force and against his will', 'threat of bodily injury', 'resulting in serious bodily injury', etc.^[17]
• Michigan: The Michigan Penal Code does not define consent (§ 750.520a). Consent only comes up in situations where the other person is deemed incapable of consenting (§ 750.520b–e.); there is no freely given or affirmative consent.^[18][19] 'Sodomy' (also called 'the abominable and detestable crime against nature') without the other person's consent is indirectly criminalised by § 750.158;^[20] Lawrence v. Texas (2003) determined that such an act was only illegal if one of the participants did not consent.^[10]
• New Jersey: The New Jersey Code of Criminal Justice only gives a general description of consent, and cases in which a person is incapable of (effectively) consenting in § 2C:2-10.^[21][22] However, State v. Cuni (1999) determined that a defendant must demonstrate the presence of "affirmative and freely-given permission..." on the part of a putative victim of sexual assault.^[22] Under '§ 2C:14-2 Sexual assault', 'sexual assault' or 'aggravated sexual assault' occurs (depending on whether 'severe personal injury is sustained by the victim') whenever '[t]he actor commits the act [of sexual penetration of another person] using coercion or without the victim's affirmative and freely-given permission' (a.(6) and c.(1)).^[21] The same applies to (aggravated) criminal sexual contact (§ 2C:14-3).^[21]
• New York: In the New York Penal Law, sexual offenses are defined as 'sexual [acts] committed without consent of the victim'. Lack of consent results from 4 possible causes: forcible compulsion, incapacity to consent, the victim not expressly or impliedly acquiesceing (in sexual abuse and forcible touching cases), or expression of lack of consent (in sexual intercourse and sexual oral or anal conduct cases). Consent itself is not defined; Section 130.5 only stipulates that a person who doesn't want to have sex needs to be clear enough in their words and acts, so that 'a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances'. This description doesn't make clear whether affirmative consent is required to have sex (or conversely, whether a lack of affirmative consent can result in a sexual offense), but both Section 130.25 Rape in the third degree (3) and Section 130.40 Criminal sexual act in the third degree (3) do provide this possibility in the form of catch-all clauses by stating that, whenever there is a 'lack of consent (...) by reason of some factor other than incapacity to consent', this is sufficient for the sexual act to amount to a crime.^[23][24]
• North Carolina: The North Carolina General Statutes do not define consent; § 14-27.20 only states that the phrase 'against the will of the other person' means either 'without consent of the other person' or 'after consent is revoked by the other person, in a manner that would cause a reasonable person to believe consent is revoked'. The phrase 'against the will of the other person' is however always used in conjunction with 'by force' ("by force and against the will of the other person"), and otherwise consent only comes up in situations where the other person is deemed incapable of consenting. Thus, there is no situation in which freely given or affirmative consent matters (§ 14-27.21–36).^[25][26]
• Ohio: The Ohio Revised Code does not define consent (§ 2907.01). Consent only comes up in situations where the other person is deemed incapable of consenting (§ 2907.02–41); there is no freely given or affirmative consent.^[27][28]
• Pennsylvania: In the Pennsylvania Consolidated Statutes, 'Section 3107. Resistance not required' stipulates that 'the alleged victim need not resist the actor in prosecutions under this chapter'. The Statutes do not define consent, but if an actor engages in sexual intercourse or deviate sexual intercourse, or aggravated indecent assault, with a complainant without the latter's consent, this makes the actor punishable under 'Section 3124.1. Sexual assault', or 'Section 3125. Aggravated indecent assault', respectively. Furthermore, mental disability can render a person incapable of consenting to sexual intercourse, deviate sexual intercourse, or aggravated indecent assault, thus making an actor who engages in these acts with a mentally disabled complainant punishable under 'Section 3121. Rape', 'Section 3123. Involuntary deviate sexual intercourse', or 'Section 3125. Aggravated indecent assault', respectively.^[29][30]
• Tennessee: The Tennessee Code does not provide a definition for consent,^[31] but a lack of consent is sufficient to commit 'rape' (also called 'unlawful sexual penetration') under §39-13-501 or 'sexual battery' (also called 'unlawful sexual contact') under §39-13-505, which in identical wording state: 'The sexual penetration/contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent.'^[32][33]
• Texas: In the Texas Penal Code, Section 22.011 (a) defines sexual assault as an actor performing various forms of sexual penetration of another person's body without that person's consent. Section 22.011 (b) implies that a person's consent is always present, except in 12 specified circumstances that render a person incapable of consenting, such as being forced or coerced with violence or threats by the actor (possibly because of the unequal power balance between the actor and the other person), unconscious or 'physically unable to resist', or having a 'mental disease or defect'. Although Subsection (b)(3) and (4) could be interpreted as requiring the other person to resist the sexual assault, in the 2016 Orgain v. State case the Second District Court of Appeals ruled that sexual assault is defined by the attacker's use of force or coercion, not by the victim's resistance.^[34] Therefore, Texas sexual assault law remains coercion-based: despite the frequent use of the word 'consent', a person cannot freely revoke their implied permanent consent (unless they can satisfy one of the 12 specified circumstances), and there is no requirement for the actor to receive affirmative consent from the other person in order for sex to be legal. In other words: if a person, who claims not to have wanted to have sex with the actor, cannot be demonstrated to have been incapable of consenting, and the actor cannot be demonstrated to have used some kind of force or coercion, it is not sexual assault under Texas state law.^[35]
• Vermont: Under 13 Vermont Statutes Annotated (V.S.A.) § 3251, 'sexual acts' can be penetrative or non-penetrative. Act 68, effective since July 1, 2021, redefined sexual consent in 13 V.S.A. § 3251 as "the affirmative, unambiguous, and voluntary agreement to engage in a sexual act, which can be revoked at any time."^[36][37][38] Reference to compulsion was removed from the definition of sexual assault 13 V.S.A. § 3252, which henceforth stated: 'No person shall engage in a sexual act with another person: (1) without the consent of the other person;...'^[39][40] A person is deemed unable to consent if they are unable to understand the nature of the conduct, physically incapable of resisting, declining participation in, or communicating unwillingness to engage in the conduct (e.g. when they are sleeping or unconscious), or lack the mental ability to communicate a decision about whether to engage in the conduct.^[36]
• Washington: The Washington Criminal Code §9A.44.010(7) states: '"Consent" means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.'^[41] Under §9A.44.060, '[a] person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person (...) [w]here the victim did not consent as defined in *RCW 9A.44.010(7), to sexual intercourse with the perpetrator...'. This is a class C felony, whereas rape in the first and second degree (both of which involve 'forcible compulsion') are class A felonies.^[42]