Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether the alleged victim had freely given consent, and whether they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.

Although many jurisdictions do not define what sexual consent is, almost all jurisdictions in the world have determined an age of consent before which children are deemed incapable of consenting to sexual activity; engaging in sex with them thus constitutes statutory rape (see laws regarding child sexual abuse). Many also stipulate conditions under which adults are deemed incapable of consenting, such as being asleep or unconscious, intoxicated by alcohol or another drug, mentally or physically disabled, or deceived as to the nature of the act or the identity of the alleged perpetrator (rape by deception). Most disagreement is on whether rape legislation for otherwise healthy adults capable of consent should be based on them not having given consent to having sex, or based on them being forced through violence or threats to have sex. Some legislation determines that, as long as no coercion is used against them, people capable of consenting always automatically consent to sex (implied consent), whereas other laws stipulate that giving or withholding consent is something which only capable individuals can do on their own volition (freely given or affirmative consent). The 2000s and 2010s have seen a shift in favour of consent-based legislation, which was increasingly considered as providing better guarantees for the legal protection of (potential) victims of sexual violence.

In legal theory, there are two main models in legislation against rape and other forms of sexual violence:

The primary advantage of the coercion-based model is that it makes it difficult to make a false accusation of rape or assault, and thus provides decent protection to the legal position and social reputation of suspects who are innocent. This line of reasoning stems from a time (dating at least as far back as the 18th century) when sex was regarded as a private matter that the state and society should mostly not interfere with, and concerns about sexual violence were mostly limited to male-on-female rape, which was firstly regarded as an offence to public morality, especially the female victim's family (her father, husband or master).

In the decades of the later 20th and early 21st century, the focus of sexual violence has shifted towards individual sexual autonomy, the scope has broadened beyond the act of intercourse, the set of potential victims and perpetrators has been expanded to include all genders, strangers as well as acquaintances and people close to the victims including intimate partners and even spouses, while social and legal attitudes have changed in favour of more active societal and state intervention in sexual violence and the attainment of justice.

Individuals and human rights organisations increasingly criticised the coercion-based model for a variety of reasons, such as the requirement for the victim to actively resist an assault (thereby failing to address cases where victims are unconscious, intoxicated, asleep or suffer from involuntary paralysis – also known as "freezing" – due to fear or other state of helplessness, and thus unable to resist an assault) or not wear certain kinds of clothes to not 'provoke' an assault (shifting the responsibility for the crime from the perpetrator unto the victim), or the focus on physical violence (thereby failing to consider that a perpetrator sometimes needs to use little to no physical violence in order to conduct an assault, e.g. when the victim is unconscious, intoxicated, asleep or involuntarily paralysed; and also failing to address mental and psychological harm caused by rape and assault). The consent-based model has been advocated as a better alternative for enhanced legal protection of victims, and to place a larger responsibility on potential perpetrators to actively verify or falsify before initiating sex whether a potential victim actually consents to initiating sex or not, and abstaining from it as long as they do not.

In contrast, legal scholar Jed Rubenfeld argued in a 2013 review that rape laws intend to protect sexual autonomy, yet the only thing that can override somebody's autonomy is coercion, threats, or abusing a state of defenselessness.^{[page needed]} Strictly speaking, Rubenfeld (invoking Commonwealth of Pennsylvania v. Berkowitz 1994) claimed that any non-consensual situation can be resolved by standing up and leaving the premises, as he deemed rape paralysis to be nonexistent. In civil law, consent is viewed as invalid if it has been obtained by deception. Consent-based rape laws, however, generally do not require either sexual partner to be truthful before obtaining consent. If sexual consent can be obtained by lies or withholding information, the autonomy of the partner is violated.^{[page needed]}

As of 2018, a consensus is emerging in international law that the consent-based model is to be preferred, stimulated by inter alia the CEDAW Committee, the UN Handbook for Legislation on Violence against Women, the International Criminal Court and the Istanbul Convention. However, there were no internationally agreed upon legal definitions of what constitutes sexual consent; such definitions were absent in human rights instruments.