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Consent Laws
California

Last Updated: April 2023

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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.
Does the definition require "freely given consent" or "affirmative consent"?	Yes. California Penal Code § 261.6.

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?	No, but the punishments for unlawful sexual intercourse with a person under 18 years old, under section 261.5, and the commission of aggravated sexual assault of a child, under section 269, depend 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, and this is known or reasonably should be known to the person committing the act. California Penal Code § 261(a)(1). See People v. Vukodinovich, 238 Cal.App.4th 166 (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, and this is known or reasonably should be known to the person committing the act. 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). “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. California Penal Code § 261(a)(4).
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 an intoxicating or anesthetic substance, or a 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). However, a current or previous dating or marital relationship is not sufficient to constitute consent if consent is at issue in a prosecution for rape. 261.6(b).

Defenses	Answer
Is consent a defense to sex crimes?	Yes, consent is a defense to rape under section 261, abduction for marriage or 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; 265; 266a; 266b.
Is voluntary intoxication a defense to sex crimes?	No. California Penal Code § 29.4.