Consent Laws
California

“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.

Yes. California Penal Code § 261.6.

18 years old. California Penal Code § 261.5.

No, but 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).

No.

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).

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

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.

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).

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).

Yes, consent is a defense to rape under section 261, 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; 265; 266a; 266b.

No.