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This series of blog articles examines all the various California sex crimes for which lack of consent is a necessary element that a prosecutor must prove in order to convict you before a jury. Although I cover a great deal of information in this series relating thereto, specifics regarding convictions, including sentencing terms, as well as defenses to specific sex crimes, are discussed in other articles on this website.
Since October 2017, when Hollywood movie mogul Harvey Weinstein’s decades-long cover was finally blown as a serial rapist – the exposure of whom gave birth to the Time’s Up and Me, Too movements – the issue of consent has been a red-hot topic. For myself, sex crimes involving allegations of nonconsensual intercourse, sodomy, oral copulation, and contact in general have always made up a significant portion of my sex crimes practice. Nevertheless, I have certainly noticed an uptick in these types of cases since Weinstein was finally outed.
California Penal Code section 261.6 defines “consent” as “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 … involved.” This provision explicitly applies this definition to the following crimes:
Rape/Forcible Rape (California Penal Code section 261)
Spousal/Marital Rape (California Penal Code section 262)
Sodomy (California Penal Code section 286)
Oral Copulation by Force, Fear, or Threats (California Penal Code section 287)
Forcible Sexual Penetration (California Penal Code section 289).
As I’ve written repeatedly in other articles on this website, anyone under 18 years of age cannot legally consent to sexual contact unless he or she is legally married to the purported perpetrator. Further, even if you, too, were a minor at the time of the sexual activity with the purported-victim-minor, you can still be prosecuted for a sex crime. See, e.g., In re T.A.J. (1998) 62 Cal.App.4th 1350, 1364.
In other words, underage persons have no legal right to have sex unless, again, they are actually married, and one minor consenting to another cannot serve as a valid defense. See People v. Kemp (1934) 139 Cal.App. 48, 51.
Consent can often fall into a gray area in California prosecutions, particularly when alcohol or drugs are involved, and where prosecutors are allowed to prove a lack thereof by inference from a totality of circumstances. See, e.g., People v. Ireland (2010) 188 Cal.App.4th 328, 338 (holding that the victim need not directly communicate lack of consent which can be inferred when force or duress is used).
In other words, as the California Supreme Court has held, the victim doesn’t need to actively or even passively resist for the prosecutor to prove lack of consent. People v. Barnes (1986) 42 Cal.3d 284, 297-302. For example, if you allegedly held a gun to the purported victim’s head, and she went limp and said nothing while you allegedly had intercourse with her, the prosecutor is entitled to argue that by virtue of that threat, the sex was nonconsenual.
Further, our state supreme court has also held that even if the victim initially consented, he or she is legally entitled to withdraw that consent at any time, which, if proven, can result in your conviction. In re John Z. (2003) 29 Cal.4th 756, 760.
Prior to this opinion, the lower courts of appeal were split as to whether rape had occurred in such a situation where the male continued intercourse after the female changed her mind “through her actions and words”. Specifically, the court held, “the force defendant exerted in resisting Laura’s attempts to stop the act was clearly ample to satisfy.” California Penal Code section 261(a)(2) (Forcible Rape).
Keep in mind, however, that if you reasonably and actually believed the purported victim did consent to intercourse (or other sexual activity), then you are not criminally culpable. People v. Dominguez (2006) 39 Cal.4th 1141, 1148.
However, such consent must be obtained in a lawful manner – i.e., it can’t be obtained by fraud or deceit, or any other illegal means. Specifically, pursuant to California Penal Code section 266c, consent cannot be obtained via a “false or fraudulent representation or pretense” if the perpetrator’s intent was to instill fear in the victim. However, this need not be fear of suffering physical injury in order to constitute coercion.
People v. Cardenas (1994) 21 Cal.App.4th 927, 937-938 (finding that defendant abused his “position of trust”, exploited the victims’ fears, and “created intolerable conditions specifically to weaken his victims, providing him with opportunities to molest and abuse them”).
The Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) mirror all of the foregoing appellate and supreme court decisions regarding consent. For example, CALCRIM number 1000 (“Rape or Spousal Rape by Force, Fear, or Threats — Pen. Code § 261(a)(2), (6) & (7)”) lists the elements of this crime as follows:
The victim didn’t consent to sex; and
The perpetrator was able to engage in sex by forcing or otherwise threatening him/her with “violence, duress, menace, or fear” of imminent physical injury to the victim or a third party.
This instruction emphasizes that the victim must truly understand the “nature of the act” to which he/she is consenting, and must otherwise give this consent “freely and voluntarily”. It also requires that if the victim did withdraw his/her consent, then a reasonable person must be able to understand that he/she did so.
Further, as clearly indicated by California Penal Code section 262 (Spousal/Marital Rape), simply because the perpetrator was married to the victim does not automatically establish consent. Nor is it a defense that the victim asked the perpetrator to use a condom during intercourse. See California Penal Code section 261.7.
In regard to a victim who is mentally or physically disabled, CALCRIM number 1004 (“Rape of a Disabled Woman — Pen. Code § 261(a)(1)”), the victim must have had a disability to such an extent that he/she was incapable of providing legal consent, and the perpetrator knew or reasonably should have been aware of his/her condition.
Illegal sex, at its worst, is obviously charged as rape or forcible rape. However, in its least egregious form, it will charged as Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5).
This crime is typically charged when the victim – but for his/her age (i.e., under 18) – would otherwise be considered to have consented to the intercourse. Again, this typically occurs when the perpetrator is also a minor or – as in a number of cases I’ve handled – where the perpetrator is an adult but no more than three years older than the minor-victim.
Because of the extreme nature of the offense, rape in its most extreme forms is commonly understood to entail severe punishments ranging from 25 years to life in prison. But lesser sex crimes involving nonconsensual sexual acts (including those where the victim is precluded from legally consenting because of his/her juvenile status) can cover a wide range of punishments.
For example, as detailed later in this series of blog articles, I’ve successfully defended a number of clients who were facing extremely serious rape charges with potential life sentences, but because of my defense and the client’s age (i.e., no more than three years older than the victim), I was able to plead them down to a simple misdemeanor for Unlawful Consensual Sex with a Minor (Penal Code § 261.5 (b)), which only carries a maximum of one year in the county jail (assuming the judge actually orders a jail term at sentencing).
Where the perpetrator is more than three years older than the minor victim, but where the sex would otherwise have been consensual but for the victim being underage, the DA’s Office has the discretion to charge the crime as a misdemeanor or a felony. This is therefore commonly referred to as a “Wobbler” (California Penal Code section 17(b)). A felony conviction thereunder would result in a state prison term of 16, 24, or 36 months. Penal Code § 261.5(c).
In 1850, one year after the Gold Rush, the California state legislature voted in its first statutory rape law where the age of consent for a female was codified as ten years old. Almost four decades later, in 1889, the age of consent was raised to fourteen. Then eight years later, in 1897, it was increased by two years to sixteen. Finally, 16 years later, in 1913, it was raised another two years to eighteen, where, of course, it’s remained ever since.
As clearly indicated above, California’s sex-crime laws involving consent as an element have continued to evolve since 1913. Most recently, on February 8, 2021, a bill was introduced to the California legislature that, if passed, would make the nonconsensual removal of a condom during sex a crime of misdemeanor Sexual Battery (California Penal Code section 243.4(e)(1)).
Penal Code section 243.4(e)(1) defines this crime as follows: you (allegedly) touched the sexual organ or other private body part of the purported victim against his or her will, and for your own sexual arousal/gratification.
Notably, Assembly Bill 453 explicitly states that actual penetration is not required – i.e., only “contact” between the perpetrator’s penis and victim’s sexual organ is necessary – for this act to constitute a crime.
The impetus for the bill was the concern that the nonconsensual condom removal would not only dramatically increase the chances of pregnancy (with a female victim, of course) and transmission of a sexually transmitted disease, but would completely transform the nature of the sex act. And this latter concern really hits at the heart of what consent is all about.
I’ll admit that out of the many hundreds of sex crimes I’ve fought over the last 16-plus years, none involved the allegedly nonconsensual removal of a condom, which is apparently known as “stealthing”. However, I have certainly handled almost every type of sexual battery case, including where the purported victim was unconscious, intoxicated, drugged, or asleep.
The following crimes involve the issue of consent – or, more specifically, the lack thereof – either as a key element that the prosecution must prove to the jury beyond a reasonable doubt in order to obtain a conviction, or, alternatively, these crimes explicitly exclude consent (legal or otherwise) as a defense thereto.
In the former category of sex offenses, legal consent provides an absolute (i.e., complete or “perfect”) defense to the charge (as discussed in more detail in the next section below).
As indicated above, I won’t go into much detail regarding specific defenses to these types of crimes. However, I do think it’s important to give a broad overview of a few of the primary defenses set forth in CALCRIM. In most of the sex crimes I’ve handled over more than a decade-and-a-half period where the purported victim was an adult, consent has been the key issue at stake. Even in the vast majority of rape/forcible rape cases I’ve defended, the defendant and complaining witness knew each other – sometimes on an intimate basis.
As set forth in CALCRIM number 1000 (“Rape or Spousal Rape by Force, Fear, or Threats — Pen. Code § 261(a)(2), (6) & (7)”), you aren’t criminally culpable for these types of crimes if you “actually and reasonably believed” that the purported victim had actually consented to intercourse. In other words, even if you were mistaken as to this consent, as long as the jury believes you were honest in your belief, you will/should be acquitted.
Again, always remember that this defense is automatically negated if the victim was never capable of legally consenting, and that you knew this was so. But conversely, if the jury believes you reasonably and actually believed he/she was capable of legally consenting – for example, you didn’t know he/she was too drunk to resist – that you can employ the preceding defense.
In addition, the jury must also believe that he/she never changed her mind throughout the intercourse or, alternatively, that you believed he/she never did so. In the specific instance of rape, however, CALCRIM requires that if the victim did change his/her mind, he/she must have “clearly and unequivocally” communicated this change to you.
Obviously, however, if you (allegedly) used violence or threats, he/she is not required to have communicated lack of consent as, again, this is inferred by this use of force. See People v. Ireland (2010) 188 Cal.App.4th 328, 338.
Among other things, in the next article I’ll discuss the new sex-registration requirements that apply to the foregoing sex crimes involving consent; the new law allowing for early parole for offenders convicted of the foregoing crimes that do not involve violence or threats; and how the new District Attorney’s Special Directives affect some of these crimes as far as seeking sentencing enhancements and Strike prosecutions under California Penal Code section 667(a)&(b)); California Penal Code section 667.5 (“Violent Felonies”); and California Penal Code section 1192.7 (“Serious Felonies”).
Aside from murder cases, rape charges are the most serious cases LADALF leader Ninaz Saffari handles as they usually involve potential life-in-prison terms upon conviction. Fortunately, however, she has never lost a rape case at trial. Similarly, she also enjoys similar outstanding track records in fighting all of the other sex crimes discussed above. Call our Los Angeles criminal defense attorney for a free consultation today.