What Does Consent Mean?
Posted on February 3, 2020     |     Sexual Assault
Consent is an important part of any sexual assault claim. The laws regarding consent vary from state to state and by circumstance. Many people do not fully understand the definition of consent or what it could mean for a case. Learning about the related laws in California could help you determine whether you have a sexual assault claim. It could also help you prepare a response if the defendant tries to use consent as a defense.
California’s Definition of Consent
California Penal Code 261.6 gives the state’s definition of consent as part of a statute about crimes against people involving sexual assault. It defines consent as a person’s positive cooperation in act or attitude in accordance with an act of free will. The person giving his or her consent must act freely and voluntarily, as well as understand the nature of the transaction or act to which he or she is consenting. A dating, spousal or marital relationship is not sufficient enough to constitute consent during sexual assault cases.
California’s definition of consent is more specific than in many other states. While most states do not include language such as “freely given” or “alternative” consent, the statute in California does. It is one of only a handful of states with sexual assault laws that include this language. State law also places an age limit on consent: 18. A person has to be 18 or older to give his or her consent in California. Even if a minor under the age of 18 agrees to an act, he or she has not lawfully given consent due to age. The only exception is if the adult in question is the minor’s spouse.
Consent as a Defense to Sexual Assault Charges
Consent is a potential defense to sexual assault that a survivor should be ready to combat during a civil claim in California. Consent is a usable defense against rape charges, abduction for different sex crimes and rape of a spouse in the state of California, according to Penal Codes 261, 262, 265 and 266. It is not a usable defense, however, if the claimant is under 18 or had a relevant disability at the time of the alleged assault. In California, a person with a developmental disability or mental disorder cannot give his or her legal consent to sexual activities. A physical disability could also prevent someone from giving consent, under section 261.
The consent defense may be applicable if the survivor under 18 years old was in a relationship with the defendant at the time of the alleged assault. If the plaintiff’s actions meet the definition of consent in California and the plaintiff was in a spousal relationship with the adult in question, it may not be a usable answer to the consent defense to say the plaintiff was under 18. A minor is capable of giving his or her legal consent to sexual intercourse if the adult is the minor’s spouse under section 261.5 of the law. The minor’s words and actions, however, must meet California’s legal definition of consent.
Does Your Case Involve Consent?
It is possible to give consent verbally and nonverbally. Physical cues can communicate to the other person you are comfortable and ready for the next step. Giving your consent once, however, does not give consent to any future sexual activities. Consenting to one thing also does not give your consent to other acts. Being of the legal age to engage in sexual activities, being in a relationship with someone, being married, imbibing in drugs or alcohol, wearing certain clothes, flirting, or kissing a person is not the same as giving your consent.
If you are curious about how the consent defense could play a role in your sexual assault case, speak to a qualified California sexual abuse lawyer for a confidential and in-depth consultation. Consent is a complicated matter that often requires legal attention.