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Defense of Consent to California Sex Crimes Criminal Charges

The defense of consent is a common defense used against sex crimes criminal charges in California, at least when the alleged sex crimes victim is over the age of eighteen (18).

Note: The “age of consent” to sexual conduct in California is eighteen (18). This means that a person under the age of eighteen (18) cannot legally consent to engage in sexual conduct. There are some exceptions to this law when the parties are legally married and engaging in sexual conduct with one another.

Example: Jack is nineteen (19) years old. Dianne is sixteen (16) years old. Jack and Dianne engage in oral copulation with each other. Result: Jack may be charged with statutory oral copulation (PC 287(b)(1)) because Dianne cannot legally consent to oral copulation with Jack. On the other hand, Dianne is not likely to be charged with statutory oral copulation, or any other sex crimes, because she is the victim, and a minor, in this scenario.

Note: In the above example, Jack may be charged with statutory oral copulation (PC 287(b)(1)) even if Dianne willingly engages in oral copulation with Jack. This is because Dianne’s “consent” is vitiated, or rendered invalid, due to her age. The result is that Jack is committing illegal oral copulation by law (i.e., “statutory” oral copulation).

Example II: Jack and Diane are legally married. Jack is nineteen (19) years old, and Dianne is seventeen (17) years old. Jack and Dianne engage in sexual intercourse in California. Result: Even though Dianne is under the age of legal consent (18), she may nevertheless legally consent to sexual intercourse with Jack because the two are married to each other. Without marriage, Jack would otherwise be charged with statutory rape (PC 261.5(c)) in this situation.

Vitiated Consent Crimes: Crimes where the victim is too young to legally consent, regardless of whether the victim is otherwise willing to engage in sexual conduct, include lewd or lascivious act upon a child, or sexual conduct with a child crimes (PC 288(a), 288.5, 288.7, 288(b)(1), & 288(c)), oral copulation of a minor (PC 287), sexual penetration of a minor crimes (PC 289), sodomy of a minor crimes (PC 286), aggravated sexual assault of a child (PC 269), annoy or molest a minor (PC 647.6), and contacting minors to engage in lewd conduct (PC 288.2, 288.3, 288.4).

Consent Defined: For purposes of sex crimes criminal charges filed under PC 261 (rape), PC 286 (sodomy), PC 287 (oral copulation), or PC 289 (sexual penetration), “consent” means 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 (PC 261.6(a) Abbrev.).

Circumstantial Consent: Consent to sexual conduct can arise from the circumstances surrounding the alleged sex offense. In fact, outside of prostitution (PC 647(b)) cases, consent to sexual conduct is arguably more common by circumstances and implication than by verbal expression.

Example: John is charged with rape by force or fear (PC 261(a)(2)) against Jane. Jane asserts that she never expressly stated to John that she consented to sexual intercourse; however, John asserts that he is not guilty of PC 261(a)(2) because Jane freely and positively cooperated in sexual intercourse with John by her conduct. In other words, Jane’s conduct may have expressed her cooperation to freely engage in sexual intercourse.

Invalid Consent: In some situations, a person cannot grant legal consent to sexual conduct because his or her circumstances do not allow free expression of consent or voluntariness of consent. These circumstances include unconsciousness of victim, intoxication of victim, mental incapacity of victim, confined victim, threats to victim so that victim will engage in sexual conduct, and minority of victim (underage victim).

Example: Romeo engaged in sodomy (anal intercourse) with Maria while Marie was under the influence of an intoxicating drug. Romeo asserts that he and Maria regularly engage in drug-free consensual sodomy, and therefore, Maria would likely have consented to sodomy even if she were not under the influence of an intoxicating drug at the time that Romeo sodomized her.

Result: Romeo may be charged with sodomy of an intoxicated person (PC 286(i)).

Note: A current or previous dating or marital relationship between the defendant and the victim is not sufficient to constitute consent under prosecution for PC 261 (rape), PC 286 (sodomy), PC 287 (oral copulation), or PC 289 (sexual penetration by foreign objection). In other words, consent to sexual conduct must be freely granted as to every sexual encounter with another person.

Also, in any prosecution for PC 261 (rape), PC 286 (sodomy), PC 287 (oral copulation), or PC 289 (sexual penetration), evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control, without additional evidence of consent, is not sufficient to constitute consent.

Evidence of Consent: Evidence of consent to sexual conduct is usually circumstantial in nature (except in cases of prostitution where consent is more commonly expressed). The circumstances that demonstrate consent may be the lack of victim’s objection where victim was capable of freely and voluntarily expressing consent, but he or she does not express that consent.

Example: Jack and Dianne are in a dating relationship. Jack and Dianne regularly engage in sexual intercourse and oral copulation. However, on one occasion, during sexual intercourse, and without soliciting Dianne’s consent, Jack performs anal intercourse with Dianne. Dianne does not verbally object to or physically resist Jack’s conduct during anal intercourse. Thereafter, Dianne expresses that she did not approve of Jack’s conduct.

Result: Jack should not be charged with non-consensual sodomy (PC 286) because Dianne did not object to Jack’s conduct, even though Dianne was free to voluntarily object to sodomy and she knew of the circumstances of Jack’s conduct.

Public Consent: In most cases, the defense of consent is used in cases where the defendant and the victim are personally engaged in sexual conduct, such as sexual intercourse, sodomy, sexual penetration, oral copulation, etc. However, consent to a sex crime allegation may be relevant in cases where the public is the victim, such as in indecent exposure (PC 314) cases, public lewd act (PC 647(a)), and engage in obscene live conduct (PC 311.6).

Example: Jane enters a “wet t-shirt” contest where contestants partially expose their breasts by way of a wet and “see through” garments. The contest is held in a small bar. During the contest, Jane decides to lift her shirt and expose her bare breasts. The bar customers cheer Jane’s conduct and other contestants follow Jane’s conduct. Later, a customer files a criminal complaint against Jane for indecent exposure (PC 314).

Result: Jane likely had public consent to expose her breasts even though a few customers of the bar might otherwise have been offended by Jane’s conduct. This is because Jane believed she had the whole public’s consent to reveal her breasts.

For more information on the defense of consent in sex crimes criminal prosecutions, contact our sex crimes criminal defense lawyers today for a free consultation. Our team of highly experienced and successful criminal defense lawyers have handled thousands of misdemeanor and felony criminal cases in the Inland Empire, including the cities and courts of Redlands, San Bernardino, Fontana, Rancho Cucamonga, Victorville, Riverside, Yucaipa, Rialto, Ontario, Highland, and more.

Our award-winning criminal defense lawyers, including successful trial lawyers, represent defense to all CA sex crimes, including sexual battery (PC 243.4), distribute nude images for revenge (PC 647(j)(4)), possession of obscene material depicting a child (PC 311.11), lewd act by force against a child (PC 288(b)(1)), operating a house of prostitution (PC 315), and more. Call today!


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Defense of Consent to California Sex Crimes Criminal Charges


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