119 STAT. 3262
PUBLIC LAW 109–163—JAN. 6, 2006 ‘‘(13) ACT OF PROSTITUTION.—The term ‘act of prostitution’ means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation. ‘‘(14) CONSENT.—The term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if— ‘‘(A) under 16 years of age; or ‘‘(B) substantially incapable of— ‘‘(i) appraising the nature of the sexual conduct at issue due to— ‘‘(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or ‘‘(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue; ‘‘(ii) physically declining participation in the sexual conduct at issue; or ‘‘(iii) physically communicating unwillingness to engage in the sexual conduct at issue. ‘‘(15) MISTAKE OF FACT AS TO CONSENT.—The term ‘mistake of fact as to consent’ means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused’s state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. ‘‘(16) AFFIRMATIVE DEFENSE.—The term ‘affirmative defense’ means any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts. The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.’’. (2) CLERICAL AMENDMENT.—The item relating to section 920 (article 120) in the table of sections at the beginning
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