October 29, 2019 By Stephen Klarich

If you or a loved one are charged with Rape [PC 261(a)(2)], Sodomy [PC 286], or Sexual Penetration [PC 289], consent may be a defense available to you.

What is “Consent” Under California Law?

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 or transaction involved.” The law goes on to provide that a “current or previous dating or marital relationship” is not sufficient, by itself, to prove consent. California Penal Code section 261.7 also provides that the fact that the accuser requested the defendant to use a condom or birth control device, without additional evidence of consent, is not sufficient to constitute consent. 

What About Mistaken Belief in Consent? Does California Law Allow That as a Defense?

Importantly, the law provides that a defendant is not guilty of rape if he “actually and reasonably believed that the woman consented” to the act of intercourse. Importantly the prosecution has the burden of proving, beyond a reasonable doubt, that the defendant did not actually and reasonably have this belief. 

What is the Age of Consent in California?

Eighteen years of age per California Penal Code section 261.5(a).

What About the Accuser’s Physical or Mental Disability or Intoxication? Can That Affect Consent?

Yes. If the accuser was not capable of consenting due to a mental disorder or developmental or physical disability, or was unconscious or intoxicated, that could negatively impact the defense of consent.

What if I Was the One That Was Drunk?  Does That Mean I Lacked the Capacity to Commit a California Sex Crime?

It depends. If you were voluntarily intoxicated, that is not a defense. However, if you were involuntarily intoxicated, such as if you were given drugs without your knowledge that may be a defense since persons are not liable for the commission of crimes committed by “misfortune or by accident when it appears that there was no evil design, intention, or culpable negligence.” Therefore, if you completed an act of sexual intercourse because you were unknowingly given drugs that caused you to act out of character, that is a possible defense to a charge of rape [PC 261(a)(2)].

Contact Experienced Sex Crimes Attorney Wallin & Klarich

If you or a loved one has been charged with a sex crime, contact the sex crime defense attorneys at Wallin & Klarich as soon as possible. With over 37 years of experience, our attorneys have the skills and knowledge to successfully defend you. We are committed to providing you with the personal attention you deserve and expect to help you overcome this difficult situation.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Call our offices today at (877) 4-NO-JAIL or (714) 386-7128 for a free phone consultation. We’ll get through this together.

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