California’s Consent Laws
California has specific guidelines defining consent. Consent plays a crucial role in the determination of sexual assault. Before pursuing any legal action, it is imperative to have an understanding of the laws outlining consent. Here is everything you need to know about consent laws in California.
What Is The Definition of Consent in California?
Under California law, an individual is consenting only if they act freely and voluntarily, and have knowledge of the nature of the act or transaction involved. A current or previous dating or marital relationship is not sufficient to constitute sexual consent. The legal age of consent in California is 18 years old.
What Is Affirmative Consent?
California has a standard that requires affirmative consent. Affirmative consent is a conscious, and voluntary agreement to engage in sexual activity. Under the standards of affirmative consent:
- Lack of protest is not the same as consent
- Lack of resistance is not the same as consent
- Silence is not the same as consent.
Moreover, affirmative consent must be ongoing throughout sexual activity. Affirmative consent can be taken back at any point in time during a sexual encounter.
What Is The Age of Consent in California?
The age of consent in California is 18 years old. Any individual under the age of 18 is deemed unable to legally consent to sexual intercourse. The only exception to the age of consent is if a minor is married to the individual with whom they are consenting to sexual activity.
Related: What Consent Looks Like
Factors That Inhibit An Individual From Giving Legal Consent
1. Unconsciousness or Unawareness
If an individual is unconscious or unconscious of the nature of the act, that individual is incapable of giving legal consent. Unconsciousness is defined through an individual meeting one of the following criteria:
- Was unconscious or asleep
- Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud
- Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose
2. Concealment or False Pretenses
An individual is not able to give consent when that individual is under the belief that the person committing the act uses any artifice, pretense, or concealment. If an individual agrees to sexual activity based on the pretense that the other party’s identity is any other than his/her own, that is not considered consent.
3. Use of Authority of a Public Official
If a sexual act is accomplished by the threat to use one’s authority as a public official to incarcerate, arrest, or deport an individual, the individual being threatened is not able to give legal consent. The individual using authority as a public official does not actually have to be a public official; the individual being threatened just must have a reasonable belief that the other party is a public official.
4. Duress
Duress means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person to perform an act which otherwise would have not been performed. An individual who performs a sexual act under duress is not legally consenting to that act.
5. Menace
Menace means any threat, declaration, or act which shows an intention to inflict an injury upon another. An individual who performs a sexual act under menace is not legally consenting to that act.
6. Inhibition Due to Intoxication
If an individual is inhibited due to any intoxicating, controlled, or anesthetic substance, that individual is not able to give consent.
7. Mental Disorder or Developmental Disability
A person may be deemed incapable of giving legal consent because of a mental disorder or developmental disability.
8. Physical Disability
A person may be deemed incapable of giving legal consent because of a physical disability.
Related: Age of Consent in California: Laws & Exceptions
What Does It Mean If an Individual Does Not Give Consent?
If a sexual encounter occurs without the consent of one of the individuals involved, the encounter could be considered sexual assault or rape. If you or someone you know has been a victim of sexual assault, you can seek help; call the National Sexual Assault Hotline at 800.656.HOPE (4673).
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If you wish to seek legal advice or learn more about consent laws in California, contact us. We will get you in touch with the most qualified lawyer for your legal issue. Get your free consultation with one of our experienced California attorneys today!