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Consent Defense in Sex Crime Cases

Posted by Ronald D. Hedding | Apr 02, 2024

In some sex crime cases, a defendant might be able to use the defense of consent to avoid a conviction. The defense of consent applies only to sexual-related crimes where consent, or lack thereof, is an element of the crime.

An “element” is a factor that must be proven beyond reasonable doubt by the district attorney in a crime to prove a defendant is guilty of the alleged crime. For example, the crime of California Penal Code 261 PC rape has elements of the crime that must be proven to convict a defendant. Rape is defined as having sexual intercourse with someone who did not consent to it.

Thus, the defense against the rape charges might apply if the defendant can prove that element “without consent” is false. Simply put, if a sex crime requires a finding that the victim did not consent to the defendant's action and the defendant can show that the victim did give consent, then they will not typically be held criminally liable for that crime.

Consent Defense in Sex Crime Cases
Sexual consent is an act given freely and voluntarily and not under threats, force, or duress.

Consent can be an effective defense in a sex crime case, which can be express or implied. Most sex acts that are consensual are not crimes. Suppose you can prove the alleged victim had consented to the sex act. This will likely lead to an acquittal or force the prosecutor to drop the charges.

California Penal Code 261.6 PC says, “(a) In prosecutions under Section 261, 286, 287, or 289, or former Section 262 or 288a, in which consent is at issue, “consent” means 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.

(b) A current or previous dating or marital relationship is not sufficient to constitute consent if consent is at issue in a prosecution under Section 261, 286, 287, or 289, or former Section 262 or 288a.

(c) This section shall not affect the admissibility of evidence or the burden of proof on the issue of consent.”

Notably, the defendant must prove their conduct was consensual in a criminal case. Still, placing the burden of proving consent on the defendant does not exclude the district attorney from proving every element of a case beyond a reasonable to find a defendant guilty. 

What is Consent?

“Consent” generally means to have permission, but under criminal law, it has a somewhat different definition, such as the following: 

  • Act freely and voluntarily and
  • Not under the influence of threats, force, or duress,
  • Knowing the true nature of the act and
  • Possesses the mental capacity to decide whether or not to do something someone proposes.

For example, as noted, a crucial element in PC 261 rape is that the alleged victim did not consent to having sexual intercourse. The defense of consent is often commonly used in California sex offenses, such as the following:

Consent granted to the defendant only because they misrepresented the facts to the victim is invalid. 

Who is Unable to Give Sexual Consent?

Some people are not capable of legally consenting to sex, regardless of what they might say or do, such as the following:

  • A minor under the age of 18 cannot legally consent to sexual intercourse, oral copulation, sexual penetration, sodomy, and other sex crimes.
  • A person who is highly intoxicated by drugs or alcohol,
  • A person who is unconscious or asleep
  • A person with mental disorders or disabled.

Judges will review the circumstances of each case to determine whether consent existed. Notably, it is not necessary for an alleged victim to physically resist or fight back to communicate a lack of consent.

What are Express and Implied Consent?

Consent can be either express or implied. Express consent means someone is granted verbal or written permission to engage in conduct that would otherwise be considered a crime without that consent. 

Implied consent is when someone uses their conduct to say they want to engage in sexual activity, which a defendant can sometimes misinterpret. Implied consent is the most common defense often used in sex crime cases.

Notably, merely being passive in a sexual situation could be considered consent, but not in all conditions. No attempt to prevent a sexual act is not the same as consent. In other words, consent requires free will and positive cooperation.

Also, third-party consent is not valid. A person cannot consent on behalf of another person in sex cases. For example, a husband is not able to grant permission to another person to engage in sexual intercourse with his wife. Consent, either express or implied, must come from the person who engages in sexual conduct that would otherwise be criminal if their consent were not granted.

Can Someone Withdraw Consent?

Yes. If your partner decides in the middle of having sexual intercourse they want to stop and withdraw their initial consent, they need to communicate that they are changing their mind with words or actions. At this point, you are legally obligated to stop having sex, or you could face rape charges. 

In other words, consent to engage in sexual conduct that would be considered a crime without it may be withdrawn. For example, if a girlfriend initially consents to sexual intercourse with her boyfriend, but during sexual intercourse, she withdraws her consent. Her boyfriend's continuation of sexual intercourse is a crime (rape).

For consent to be effective, the withdrawal of consent after it was initially granted must be communicated by words or conduct. A defendant will not likely be held criminally liable where they were initially permitted to engage in sexual conduct, and someone's withdrawal of the alleged victim's consent is not clearly and timely communicated.

What Type of Evidence Can Show Sexual Consent?

Most sex crime cases in California rely on testimony by the alleged victim and the defendant. If there is a contradiction over whether the alleged victim consented, other evidence must be used. Credibility is significant in these cases. Any inconsistency on either side of the story can make it seem fabricated, exaggerated, or false. 

Any text messages, emails, or phone calls that show an alleged victim consented can make a huge difference. Notably, evidence of an ongoing relationship cannot be used to show sexual consent but could create an inference of consent. 

Other defenses may still apply, such as mistake of fact in cases where the victim was a minor under 18, and you reasonably believed they were an adult. Perhaps we can use the statute of limitations as a defense and the insufficient evidence to prove the allegations, coerced confessions, impeachment of witness statements, etc. 

Contact us for more information or a free case evaluation. The Hedding Law Firm is based in Los Angeles, CA.

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Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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