Roughly a dozen states define sexual consent in their criminal codes in ways that require active, voluntary agreement rather than the mere absence of a refusal, and a smaller group mandates affirmative consent on college campuses without touching their criminal statutes. Among the states with affirmative consent laws, Vermont, New Jersey, and Maryland use the most explicit “affirmative” language in their criminal codes. Washington, Wisconsin, Illinois, Minnesota, California, and Colorado define consent as a “freely given agreement” or “positive cooperation,” which functions the same way. California, New York, and Connecticut separately require affirmative consent standards at colleges and universities.
What Affirmative Consent Means
Older consent standards asked whether the victim said no or physically resisted. Silence or passivity could be read as agreement. Affirmative consent reverses the question: the issue is whether the person actively agreed, through words, gestures, or conduct. Silence alone doesn’t count. A prior relationship, past sexual history, and manner of dress don’t count. Consent is also ongoing, and can be withdrawn at any point during sexual activity.
States With Explicit Affirmative Consent in Criminal Law
Vermont
Vermont’s statute is the most direct in the country. Since July 2021, it defines consent as “the affirmative, unambiguous, and voluntary agreement to engage in a sexual act, which can be revoked at any time.” The word “affirmative” appears in the statute itself, and the right to withdraw consent mid-encounter is written into the definition.1Vermont General Assembly. Vermont Statutes Title 13, Section 3251 – Definitions
New Jersey
New Jersey has the longest history with this standard. In the 1992 case State in the Interest of M.T.S., the state Supreme Court held that sexual penetration without “affirmative and freely-given permission” is sexual assault, regardless of whether additional physical force was used. That standard was later codified in the state’s criminal sexual assault statute, which treats sexual penetration “without the victim’s affirmative and freely-given permission” as a crime.2Justia Law. New Jersey Revised Statutes Section 2C-14-2 – Sexual Assault
Maryland
Maryland’s law took effect October 1, 2024. It defines consent as “the clear and voluntary agreement by an individual to engage in vaginal intercourse, a sexual act, or sexual contact,” evaluated based on the totality of circumstances, including the words and conduct of both the victim and the defendant. A prior dating or sexual relationship does not, on its own, establish consent, and submission produced by fear, threats, or coercion doesn’t count. The statute also makes clear that manner of dress cannot constitute consent and that consent need not be documented in writing.3Maryland General Assembly. Maryland Criminal Law Code Section 3-301.1 – Definition of Consent
States Requiring “Freely Given Agreement” or Equivalent
Several states don’t use the word “affirmative” but define consent in ways that functionally require active agreement. Each demands evidence of voluntary participation through words or conduct, so silence and passivity are not enough.
Washington
Washington defines consent as “actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact” at the time of the act. The focus on actual words or conduct means prosecutors and juries look for tangible evidence of agreement rather than the absence of resistance.4Washington State Legislature. Revised Code of Washington Section 9A.44.010 – Definitions
Wisconsin
Wisconsin defines consent as “words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact.” The statute adds that people with a mental illness that impairs their capacity to assess their own conduct, or who are unconscious or physically unable to communicate, are presumed incapable of consenting.5Wisconsin State Legislature. Wisconsin Statutes Section 940.225(4) – Consent
Illinois
Illinois defines consent as “a freely given agreement to the act of sexual penetration or sexual conduct in question.” The statute states explicitly that a lack of verbal or physical resistance does not constitute consent, and neither does the victim’s manner of dress. A person who initially consents can withdraw that consent at any time during sexual activity.
Minnesota
Minnesota defines consent as “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor.” A prior social relationship or failure to resist does not constitute consent, and a person who is mentally incapacitated or physically helpless cannot consent.
California
California’s criminal code defines consent as “positive cooperation in act or attitude pursuant to an exercise of free will,” requiring that the person act freely, voluntarily, and with knowledge of the nature of the act. A current or previous dating or marital relationship does not automatically establish consent.6California Legislative Information. California Penal Code Section 261.6 – Consent
Colorado
Colorado’s language closely tracks California’s, defining consent as “cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act.” A current or previous relationship is not sufficient to establish consent, and submission caused by fear does not count.
States With Affirmative Consent on Campus Only
A separate group of states requires affirmative consent at colleges and universities without changing their criminal statutes. These policies govern campus disciplinary proceedings, which are not criminal cases and use a different burden of proof.
California
California was first. SB 967, enacted in 2014, requires all colleges and universities receiving state financial aid to adopt an affirmative consent standard, defined as a “conscious, and voluntary agreement to engage in sexual activity.” The law puts the responsibility on each person to make sure they have the other’s affirmative consent. Lack of protest, resistance, or silence does not mean consent, and consent cannot exist if a person is asleep, unconscious, or incapacitated by drugs or alcohol.7California Legislative Information. Senate Bill 967 – Student Safety, Sexual Assault
New York
New York’s Education Law requires every institution of higher education to adopt a definition of affirmative consent in its code of conduct, defined as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” This standard governs campus disciplinary proceedings but does not change New York’s criminal law definitions.8New York State Laws. Laws of New York 2015 Chapter 76 – Article 129-B Sexual Assault Prevention and Response Policies
Connecticut
Connecticut requires institutions of higher education to use affirmative consent as the standard for sexual activity, defined as “an active, clear and voluntary agreement by a person to engage in sexual activity with another person.” The law specifies that affirmative consent can be revoked at any time and that intoxication is not a valid excuse for failing to obtain it.9Connecticut State Colleges and Universities. Consensual Relationships Policy
The difference between campus and criminal matters for anyone trying to understand what applies to them. A finding of responsibility under a campus affirmative consent policy can lead to suspension or expulsion, but it is not a criminal conviction and creates no criminal record. Campus proceedings typically use a preponderance-of-the-evidence standard rather than proof beyond a reasonable doubt. A person could be cleared in criminal court and still face campus discipline, or the reverse.
When Consent Cannot Be Given
Across the states with affirmative consent standards, certain conditions prevent valid consent regardless of what the person said or did. The specifics vary, but these appear in most statutes:
- Incapacitation by drugs or alcohol, including unconsciousness, sleep, or impairment severe enough that the person cannot understand the nature of the act.
- A mental condition that prevents understanding of the nature or consequences of a sexual act, whether permanent or temporary.
- Being below the state’s age of consent, which generally ranges from 16 to 18.
- Agreement produced by fear, threats, or coercion. Submission under those conditions is not consent, even if the person appeared to cooperate.
Wisconsin’s statute shows how this plays out: it creates a legal presumption that a person who is unconscious, physically unable to communicate, or suffering from a mental impairment that affects their judgment cannot consent. That presumption can be rebutted, but the starting point is no consent.5Wisconsin State Legislature. Wisconsin Statutes Section 940.225(4) – Consent
How the Map Is Changing
New Jersey’s 1992 M.T.S. decision was the first major legal shift away from requiring proof of force or resistance, and for decades it stood largely alone. The pace picked up around 2014, when California mandated affirmative consent for campus proceedings. Vermont’s 2021 statute and Maryland’s 2024 statute are the most recent criminal-law adoptions. Several state legislatures have considered affirmative consent bills in recent sessions, so the list above can shift. If a specific state matters to your situation, check its current statute directly.