Is It Sexual Assault if I Thought I Had Consent?

 Posted on September 08, 2026 in Sex Crimes

Whether having sex with someone else is sexual assault if you thought you had consent depends on the specific facts of the case and the type of sexual assault allegation involved. Texas law looks at whether consent existed and whether one of the circumstances that makes an act nonconsensual under state law applies. In some cases, a reasonable mistake of fact may also become relevant to the defense.

If you're facing a charge in 2026, our San Marcos, TX sexual assault defense lawyer can help you understand your options.

What Does Texas Law Say About Consent in Sexual Assault Cases?

Under Texas Penal Code Section 22.011, sexual assault occurs when someone engages in specific sexual acts without the other person's consent. The law defines several situations where consent is considered absent. This includes when someone communicates nonconsent through words or conduct. It also includes situations involving force, violence, coercion, threats, unconsciousness, or certain forms of incapacity.

The state has to prove the sexual act happened without consent, based on how the law defines it. Simply believing you had consent, based on assumptions or unclear signals, isn't enough on its own. What actually happened, and what was communicated between both people, is critical to the case.

Can a Genuine Misunderstanding Be a Defense in a Sexual Assault Case?

A misunderstanding about consent may make a difference in some Texas sexual assault cases. Under Texas Penal Code Section 8.02, mistake of fact can be a defense when a person forms a reasonable belief about a fact, and that mistake means the person did not have the mental state required for the offense.

However, this defense does not automatically apply just because someone says they believed the other person consented to having sex. Whether it is available depends on how the sexual assault is charged and the facts of the case. For example, Texas courts have held that a mistake-of-fact may not apply when the alleged sexual assault involved force or threats.

What Evidence Helps Show You Can Consent in a Sexual Assault Case?

Building a defense based on genuine misunderstanding requires gathering specific evidence supporting your account of what happened. Helpful evidence includes:

• Text messages or communications before, during, or after the incident

• Witness statements from people who observed interactions between you and the other person

• Evidence of the nature and history of your relationship, if any existed

• Any statements or actions by the other person that could reasonably be interpreted as consent

• Communications occurring after the incident that might reveal how each person understood what happened

This evidence may help show that your belief about consent was genuinely reasonable given the full context of the situation, even if that belief was ultimately mistaken.

Does Intoxication Affect Consenting to Sex in Texas?

Being drunk or high can have a major effect on a sexual assault case. But simply drinking alcohol or using drugs does not automatically mean someone cannot consent. Under Texas law, a sex act automatically happens without consent if the accused knows the other person was too drunk or impaired to consent. Evidence about how the person was acting, talking, and responding at the time can help show whether this part of the law applies.

What Role Does Prior Relationship History Play in a Sexual Assault Case Where Consent is Disputed?

A prior relationship, whether romantic or otherwise, doesn't automatically establish consent for any specific encounter. However, it can become relevant when evaluating whether your belief about consent was reasonable. Courts often look at established patterns of communication between two people who've had prior consensual encounters.

Prior consent doesn't automatically carry over to every future interaction. But the history between two people, and how they usually communicate, can still provide helpful context. This context can help explain why a belief about consent, even if wrong, might have made sense at the time.

What Should You Do if You're Facing a Sexual Assault Accusation?

There are a few things worth doing right away to protect yourself. Do not reach out to the accuser, even if your intentions are good. It can end up working against you. Get your memory of the interaction down on paper as soon as you can, including anything said or texted beforehand. And don't wait to bring in a defense attorney who can start looking at the specifics of your case.

Schedule a Free Consultation With Our Decatur, TX Sex Crimes Defense Attorney

Attorney Timothy D. Godwin brings a unique background to criminal cases. He’s a former Traffic and Highway Patrol Trooper and military veteran. This experience gives him valuable insight into how law enforcement investigates and builds cases. He uses it to identify weaknesses in the evidence and build an effective defense strategy.

Contact Godwin Law Firm, PLLC at 940-255-0000 to talk to our San Marcos, TX sexual assault defense lawyer today.