The Crucial Role of Consent in Sex Crime Cases

The concept of consent plays a central and intricate role, particularly in the context of sexual offenses. California Penal Code section 261.6 defines consent and elucidate its significance in various sex crimes.

Consent Defined

Penal Code section 261.6 defines consent as a freely given agreement to engage in sexual activity. It explicitly states that consent must be voluntary and can be withdrawn at any point during the act. Consent should not be obtained through force, duress, menace, fear, fraud, deceit, or undue influence. If consent is obtained through any of those means, then it is not validly given.

Penal Code section 261.7 elaborates on the concept of consent in cases of rape, sodomy, oral copulation, forcible penetration, or oral copulation with a minor. If consent is at issue in cases for those crimes, evidence that the victim suggested or requested that the defendant use a condom or other birth control device, is not enough to constitute consent alone.

Absence of Consent

In many sex crimes, the absence of consent is a critical element of the offense. To secure a conviction, the prosecution must prove beyond a reasonable doubt that the sexual act occurred without the consent of the alleged victim.

One of the most notable examples of the absence of consent as a required element in California law is the crime of rape. Rape is defined as non-consensual sexual intercourse, and it is a serious felony offense. To successfully defend against a rape charge, a defense attorney must scrutinize whether consent was given or absent.

For example, the prosecution alleges that John engaged in sexual intercourse with Jane without her consent. In order to secure a rape conviction, the prosecution must provide evidence to demonstrate that Jane did not freely agree to the sexual act. John’s defense attorney may argue that there was a misunderstanding or miscommunication regarding consent. They also may present evidence to suggest that Jane did, in fact, consent to the sexual activity, making it a consensual act.

Consent as an Affirmative Defense

While consent is typically required as an element for the prosecution to prove in sex crimes, it can also be raised as an affirmative defense in certain situations.

For example, Mark is accused of sexual assault, and the alleged victim claims that she did not provide consent. Mark’s defense attorney can assert the affirmative defense that he reasonably believed the alleged victim consented. If the defense can present evidence that Mark genuinely and reasonably believed in the existence of consent, it may lead to a favorable outcome for the defendant.

Critical Points and Distinctions

Withdrawal of Consent: If the alleged victim initially consented but later withdrew consent during the sexual activity, this withdrawal of consent must be respected. However, the fact that there was consent in the first place may be a defense to the charge.

Coercion or Duress: In some cases, the alleged victim may have consented due to fear, threats, or intimidation. Defense attorneys should investigate whether external factors played a role in obtaining consent and whether the consent was genuinely voluntary.

Voluntariness: Consent must be voluntary. Defense attorneys should scrutinize whether any factors, such as intoxication or incapacitation, affected the alleged victim's ability to provide voluntary consent.

If you are charged with a sex crime, it is critical that you discuss your case with an experienced criminal defense attorney. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has successfully defended clients against false allegations of sex crimes where consent was clearly given.

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at (888) 334-6344 or (323) 464-6453.

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