June 4, 2012 By Stephen Klarich

Issues of sexual consent in California can be more complex than one might imagine. The law should be sufficiently clear: a person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. However, many times rape or sexual assault charges are brought against an individual who is unaware that he has committed an offense in Orange County. Considering how serious the penalties are for a conviction, it is important to have a clear understanding of what specifically constitutes consent.

There was a time when a wife was considered something like property. A rape charge against the husband in such a climate would certainly be met with bemusement. Yet, even with equal rights laws that prevail today, some spouses believe that they have an absolute right to engage in sexual intercourse with a mate, regardless of consent. They presume that their marriage license automatically gives them the right to engage in sex even when the other resists. In fact, a man or woman may be charged with rape if the spouse is unwilling.

Similarly, couples who have developed an understanding of exclusivity do not have a right to sex without consent. If a mate has fallen asleep and the other decides to initiate sex, there is no clear consent. This is can be true even if the couple has already engaged in sexual activity. Moreover, the mere request that the partner wear a condom may not be sufficient to establish implied consent.

Often individuals find themselves slapped with rape charges after drinking or at a party. When the partner has become so intoxicated that she or he is unable to resist or make a reasoned judgment about having sex, and the initiator is either aware of, or should be aware of the partner’s state, there is no clear consent.

Finally, fraudulent misrepresentation can be grounds for a rape charge. For example, assume that a friend impersonates a spouse, perhaps at a party where guests are wearing masks. If the other consents to sexual intercourse believing that it is his or her spouse, this does not constitute consent because it was given under fraudulent circumstances.

Many other situations exist which may leave individuals wondering where the legal line is drawn between consent and sexual assault. A good rule of thumb is to make sure the potential partner is clear on what the intentions are, and verbally consents to them.

If you are charged with rape or sexual assault, you face significant penalties that can severely and permanently impact your life, including possible prison time and registration as a sex offender. It is very important that you seek the legal services of an attorney who will aggressively and competently defend you. The attorneys at Wallin & Klarich have spent over 30 years working to help clients who have been accused of sex crimes. Call us today at (877) 466-5245.

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