Minnesota Law Review
Current law allows defendants to use a preexisting relationship to give credibility to a defense of consent or reasonable, good faith belief of consent. However, the law acknowledges various connections between people and recognizes that under certain circumstances it is appropriate both to prevent a person from acting and to require a person to act. If courts applied the doctrine of confidential relationships to acquaintance rape, evidence of the relationship would impose upon the defendant a heightened duty of care to the victim. This heightened duty of care would change the mental element of the crime. It would also change the definition of consent to mean positive words or positive action indicating a freely given agreement to have sexual contact. Finally, it deters the defendant from introducing evidence of the prior relationship or prior conduct between the victim and the defendant as relevant to showing consent to sexual contact during the disputed incident. Instead, the prosecution may introduce evidence of the prior relationship and conduct to impose on the defendant a heightened duty to obtain consent.
Beverly Balos and Mary Louise Fellows, Guilty of the Crime of Trust: Nonstranger Rape, 75 Minn. L. Rev. 599 (1991), available at http://scholarship.law.umn.edu/faculty_articles/129.