Are Sexual Consent Contracts a Valid Defense to Rape Charges?
Recently, a company began selling what it is calling a possible solution the he-said, she-said nature of sexual consent. The company is offering a sexual consent kit, which includes breath mints, a condom, a pen and a contract that you and your partner sign before you engage in sexual activity.
The simple contract included in the kit (you can also purchase the contract separately) recommends that you and your partner take a picture of you both holding the contract as evidence that any sexual activity you are engaging in is consensual. 1 Would this sexual consent contract hold up as evidence in court? Could this be used to defend you against rape charges?
California Rape Law (PC 261)
California Penal Code Section 261 defines rape as nonconsensual sex achieved through force, fraud or threat. The penalties for this crime are very severe.
Even if you think you have consent with your partner, that might not be the case. Under California law, a person cannot legally give consent under the following situations:
- He/she is intoxicated
- He/she has a mental disorder or disability
- He/she was unconscious, asleep or unaware 2
If you are convicted of rape in California, you could be sentenced to 3, 6, or 8 years in state prison.
Sexual Contracts as Evidence against Rape Accusations
Sexual consent contracts promote getting “affirmative consent” before and during sexual activity. California’s Affirmative Consent law (Yes Means Yes) requires that you get permission for each sexual act you perform with someone. For example, you would need your partner’s verbal or non-verbal permission before kissing, touching, engaging in oral sex, and having sex.
In other words, affirmative consent requires continuous bipartisan enthusiasm about the sexual experience throughout the entire sexual experience. 3 The University of California, Berkeley defined it as knowing exactly what you are agreeing to, expressing your consent to participate and voluntarily deciding to participate. 4 However, the Yes Means Yes law currently only applies on college campuses in California.
For men and women looking to protect themselves while enjoying sexual activity outside of a monogamous relationship, contracts may not be the answer. While having a sexual partner sign a consent contract surely can’t hurt any rape case against you, be aware that these forms will not be accepted by the court as proof that you didn’t commit rape. In other words, they are not legally enforceable and should not be relied on for legal protection against being accused of rape. Technically, your partner could sign the contract and then change their mind about engaging in sex with you.
Have You Been Accused of Rape? Call Wallin & Klarich Today
If you have been accused of rape, it is critical that you contact a Wallin & Klarich criminal defense attorney immediately. Our skilled attorneys have over 30 years of experience successfully our defending clients charged with rape. We will analyze the facts of your case and plan a defense strategy that will help you get the very best outcome possible in your case.
With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
1. [http://consentgear.com]↩
2. [https://www.wksexcrimes.com/rape.shtml]↩
3. [http://thinkprogress.org/health/2014/06/25/3453041/affirmative-consent-really-means/]↩
4. [http://www.cnn.com/2014/09/03/living/affirmative-consent-school-policy/]↩
