In the state of California, consent is a foundational element in determining the legality of sexual activities. California law defines most sex crimes as involving a scenario where one person does not or cannot give consent. Violating these laws carries severe legal consequences, including fines, prison time, and required registration as a sex offender.
For this reason, understanding consent from a legal standpoint is key to staying on the right side of the law in California with regard to sexual contact, and just as importantly, it may be key to defending yourself if you're charged with a sexual crime.
The legal age of consent in the state of California is 18 years old, which is when the law considers someone old enough to consent to have sex. Put more simply, it's a crime to engage in sexual activity with any person under 18.
If you have sex with a minor, you could face criminal charges, such as statutory rape, codified under California Penal Code 261.5 PC. It doesn't matter if the sex was consensual or if the minor initiated the sexual activity.
In other words, this law prohibits any type of sexual activity with anyone under the age of 18. Many states have passed safe harbor provisions called "Romeo and Juliet Laws," which say two people who are close in age and have a committed relationship before one party turns 18 years old can lawfully engage in sexual activity.
However, the state of California has not enacted any such provision, meaning that if you have sex with someone under the legal age of consent, then you are exposed to criminal liability.
What is the Role of Consent?
Consent is the critical factor distinguishing lawful sexual acts from unlawful ones. Under California law, consent must be affirmative, conscious, and voluntary to validate sexual activity between adults. Any sexual act that occurs without mutual agreement is considered non-consensual.
Engaging in non-consensual sexual activity can result in criminal charges, ranging from sexual battery to rape. The legal principle underpinning sex crimes in California is straightforward.
If one person does not agree to the sexual act or is incapable of legally agreeing, then the act becomes unlawful. Law enforcement and courts take allegations of sex crimes seriously and aim to protect individuals from situations involving coercion or abuse.
The age of consent is supposed to protect young people from being taken advantage of by adults. By setting an age of sexual consent, there is an acknowledgment that there is a point of maturity before which a young person cannot make wise decisions about sex.
Simply put, minors don't typically have the life experience or brain development to understand the consequences of their sexual actions.
Even when a young person gives verbal consent to sex or initiates it, the law says they are not allowed to do so. It is considered coerced or manipulated if you have sexual intercourse with a minor, which is described as any sexual penetration, even slight, of the vagina by the penis, and ejaculation is not required.
The age of consent laws are designed to deter adults from pursuing underage sex partners because they are not normally mature enough to make intelligent and informed decisions about the physical and emotional risks of having sex.
What is the Legal Age of Consent in California?
As noted, the legal age of consent in California is 18 years old. This means that as far as the law is concerned, individuals who are under 18 lack the legal capacity to agree to sexual conduct, regardless of the circumstances.
When an adult engages in sexual activity with a minor, it often results in statutory rape charges under Penal Code 261.5, even if the minor appeared willing or initiated physical contact.
Statutory rape penalties can range from probation to several years in prison, depending on the age difference between the parties. Notably, the law also applies to cases where both parties are minors engaging in a sexual act, but prosecutions are rare.
Statutory rape is a wobbler that can be charged as a misdemeanor or a felony. The primary factor in determining how to charge PC 261.5 is the age difference between the perpetrator and the alleged victim. Suppose you are no more than three years older. In that case, then statutory rape will always be charged as a misdemeanor that carries:
- Up to one year in county jail,
- A fine of up to $1,000,
- Summary probation
If you are more than three years older than the victim, or 21 years old or older, and the victim is under 16, statutory rape could be charged as a felony that carries:
- Up to four years in state prison,
- A fine of up to $25,000,
- Formal felony probation.
Notably, a misdemeanor or felony statutory rape conviction will not require sex offender registration under Penal Code Section 290, but you could also face civil penalties.
What is the Definition of Consent Under California Law?
Consent in California requires clear, affirmative agreement from both parties involved in any sexual act. Silence or lack of resistance does not equate to consent.
Neither does the absence of physical force. California law emphasizes that a person must actively communicate their willingness, verbally or through an unmistakable action, to participate in the sexual encounter.
This principle is codified in California's "Yes Means Yes" law (SB 967), which introduced the concept of affirmative consent into state law. Enacted in 2014 and primarily applicable to educational institutions, the law requires an explicit "yes" for all sexual encounters.
While the "Yes Means Yes" statute originally applied to college campuses, its standard has influenced broader legal interpretations of consent.
The most notable aspect of the "Yes Means Yes" law is that consent must be clear and unambiguous. The law specifically states, "Lack of protest or resistance does not mean consent, nor does silence mean consent."
This statement effectively eliminates the idea of misunderstanding silence as consent as a legal defense. Summarizing the key aspects of this law:
- A clear verbal or non-verbal indication of consent is necessary.
- Consent can be withdrawn at any time, and ongoing participation is essential.
- Being in a dating or marital relationship does not automatically imply consent.
- Prior sexual activity does not guarantee consent in future interactions.
What Conditions Make Sexual Consent Impossible?
California recognizes several scenarios where an individual cannot provide lawful consent. These include the following:
- Age: A person under the age of 18 cannot legally consent to sex in California.
- Intoxication: If an individual is under the influence of drugs or alcohol to the point where they cannot make informed decisions or understand the nature of the act, they cannot consent. This applies even if they voluntarily consumed the substances.
- Unconsciousness: A person who is unconscious, asleep, or otherwise unaware cannot provide consent.
- Coercion: Threats, intimidation, or any form of pressure that compels someone to engage in sexual activity nullify any semblance of consent.
- Mental or Physical Impairment: Individuals with mental disorders or physical disabilities that inhibit their judgment or ability to communicate effectively cannot consent.
Failing to recognize these conditions can result in criminal charges that carry significant penalties.
What are the Potential Penalties for Violating Consent Laws?
The consequences of failing to obtain lawful consent before engaging in sexual activity can be severe in California. The penalties vary depending on the nature of the offense. Still, generally speaking, regardless of the specific criminal charges, a conviction for a sex crime may include any/all of the following penalties:
- Fines.
- Jail or prison time, and
- Required registration as a sex offender for a minimum of 10 years. In some cases, depending on the offense, this requirement may even be for life.
If you have been accused of statutory rape, the issue of the age of consent is important. Perhaps we can argue that you reasonably believed the other person was above the age of consent.
Maybe they told you they were over 18, and you had no reason to think they were lying. In other words, you didn't willfully violate the age of consent law.
This mistake of age argument is one of the most common defenses. We need to show that you believed they were an adult at the time of sexual intercourse. A good-faith belief that the alleged victim was over 18 is a defense to statutory rape.
Perhaps we can argue that the rape accusations are false. At the early stages of a police investigation of an alleged sex crime, police might use a pretext phone call to elicit incriminating statements from the accused. For more information, contact our California criminal defense lawyers, Eisner Gorin LLP, based in Los Angeles.
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