Is it possible to sign a sexual consent contract before engaging in intimate relations? What validity would it have if the other person later changes their mind? These questions, increasingly frequent in a context of growing awareness about sexual freedom, have been answered decisively by the Supreme Court.
In this article, as a criminal defense attorney specializing in sex crimes, I explain what sexual consent means in criminal law, why it cannot be agreed upon or automated, and what consequences come from acting without it.
Can I sign a contract regarding consent to have sexual relations?
Recently the Supreme Court ruling has addressed this issue with unquestionable legal clarity: sexual consent cannot be the subject of prior agreements, contracts or arrangements, not even between persons with a stable romantic or sexual relationship.
In the case analyzed, the defendant was convicted of sexual assault for having penetrated his partner while she was sleeping, claiming the existence of a supposed «verbal agreement» that permitted that type of conduct. The Supreme Court categorically dismissed this argument.
«Our constitutional system of fundamental rights, based on the preeminence of human dignity and the free development of personality, radically rejects any contractualist conception of sexual consent within relationships»,
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Is it legal to sign an agreement to engage in sexual relations?
What does the most recent case law say about sexual consent?
The Supreme Court has reinforced that «Consent is renewable for each sexual act, even with the same person. And it is essentially revocable during the act«.
Consent is also required regarding the manner of the sexual act. For example, if condom use is agreed upon and it is removed during the act without consent (what is known as stealthing), it constitutes sexual assault.
Consent is essentially revocable. A person can decide to stop the sexual act at any moment, and continuing without their consent would be a crime.
The Supreme Court expressly rejects:
- The presumption of consent based on previous relations.
- Consent by omission, passivity or silence.
- The legitimacy of «deferred» or «generalized» consent.
When is there sexual consent and when is there not?
As a criminal defense attorney, these are the questions I hear most in my office. And the answer, although it may seem obvious, is not always so for someone involved in criminal proceedings for sex crimes.
Sexual consent only exists when there is a clear and voluntary affirmation, verbal or non-verbal, of the will to engage in relations. Some examples where
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Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.