It is the burden of the State to prove beyond a reasonable doubt the absence of consent to the (sexual intercourse)/[specify other sexual conduct].
Persons need not expressly announce their consent to engage in sexual activity for there to be consent. Consent can be given either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person that consent for the specific sexual activity had been given.
Consent is present when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.
"Consent" means the affirmative, unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter. Consent can be revoked at any time.
Consent cannot be:
1. Given by an individual who:
a. is asleep or is mentally or physically incapacitated either through the effect of drugs or alcohol or for any other reason, or
b. is under duress, threat, coercion or force; or
2. Inferred under circumstances in which consent is not clear including, but not limited to:
a. the absence of an individual saying "no" or "stop", or
b. the existence of a prior or current relationship or sexual activity.
If there is evidence to suggest that the defendant reasonably believed that consent had been given, the State must demonstrate that such a belief was unreasonable under all of the circumstances. If you find that the State has failed to sustain its burden of proof beyond a reasonable doubt, then the defendant must be found not guilty.
Statutory Authority: 21 O.S. Supp. 2017, § 113.
Notes on Use
This Instruction should be given where consent is an issue in the case, including where "force" is an element of a crime involving sexual assault. See 21 O.S. Supp. 2017, § 111(A) (defining "force") and § 112 (defining "sexual assault").