Consent Laws
California

Last Updated: March 2020
Defining Consent Answer

How is consent defined?

“Consent” is defined to mean positive cooperation in act or attitude pursuant to the exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. California Penal Code § 261.6.

 

Consent cannot be procured through inducing fear in the victim. See West's Ann.Cal.Penal Code § 266c

"Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years.
As used in this section, “fear” means the fear of physical injury or death to the person or to any relative of the person or member of the person's family."

Does the definition require "freely given consent" or "affirmative consent"?

Yes. California Penal Code § 261.6.

“Consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.






Capacity to Consent Answer

At what age is a person able to consent?

18 years old. California Penal Code § 261.5.

Does difference in age between the victim and actor impact the victim's ability to consent?

Yes, the punishments for unlawful sexual intercourse with a person under 18 years old, under section 261.5, and aggravated sexual assault of a child, under section 269, vary based on the difference in age between the victim and actor. California Penal Code §§ 261.5; 269(a).

Does elderly age impact the victim’s ability to consent?

No.

Does developmental disability and/or mental incapacity impact the victim’s ability to consent?

Yes, a person can be incapable of giving legal consent because of a mental disorder or developmental disability. California Penal Code § 261(a)(1). See People v. Vukodinovich, 238 Cal.App.4th 166, 189 (Cal. Ct. App. 2015).

Does physical disability, incapacity or helplessness impact the victim’s ability to consent?

Yes, a person can be incapable of giving legal consent because of a physical disability. California Penal Code § 261(a)(1).

Does consciousness impact the victim’s ability to consent?

Yes, the accused is guilty of rape if engaging in an act of sexual intercourse where the other person is at the time unconscious of the nature of the act and it is known to the accused. California Penal Code § 261(a)(4)(A).

“Unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:

  • was unconscious or asleep;
  • was not aware, knowing, perceiving or cognizant that the act occurred;
  • was not aware, knowing, perceiving or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact; or
  • was not aware, knowing, perceiving or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

Does intoxication impact the victim’s ability to consent?

Yes, the accused is guilty of rape if engaging in an act of sexual intercourse where the other person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. California Penal Code § 261(a)(3).

Does the relationship between the victim and actor impact the victim’s ability to consent?

Yes, a minor is capable of consenting to sexual intercourse with an adult who is the minor’s spouse. California Penal Code § 261.5(a).

 

Also, A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 287, or 289 or former Section 288a. 

See, Cal.Penal Code § 261.6 Consent; current or previous dating or marital relationship; admissibility of evidence or burden of proof

 





Defenses Answer

Is consent a defense to sex crimes?

Yes, consent is a defense to rape under section 261, rape of a spouse under section 262, abduction for defilement under section 265, abduction for prostitution under section 266a, and abduction to live in an illicit relation under section 266b. See California Penal Code §§ 261; 262; 265; 266a; 266b.

 

However, evidence that a victim asked the perpetrator to use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent. See, West's Ann.Cal.Penal Code § 261.7. Evidence that victim requested that defendant use condom or other birth control device; consent.

Is voluntary intoxication a defense to sex crimes?

No.









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