Sexual consent is generally defined as the, "Positive, unambiguous, and voluntary agreement between participants to engage in a specific sexual activity during a sexual encounter."
Sexual assault occurs in the absence of sexual consent. Examples of sexual assault include: voyeurism; exhibitionism; inappropriate touching; unwanted vaginal, anal, or oral penetration; rape; attempted rape; child molestation.
Sexual assault occurs in the absence of sexual consent. Examples of sexual assault include: voyeurism; exhibitionism; inappropriate touching; unwanted vaginal, anal, or oral penetration; rape; attempted rape; child molestation.
The concept of consent can be rather confusing to some. Because of the ambiguous nature of consent, there can be much room for subjective interpretation. In this blog post, I will clarify the ambiguity of consent by framing some of the more commonly known sexual offenses from a legal standpoint. Although I will be referencing the laws of my home state, California, please take the time to review your state laws on sexual misconduct, as they typically vary by region.
Age:
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Please note that the age of consent in the state of California is 18.
According to CA Penal Code §265:
"Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony.
Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony."
Additional California laws on sexual misconduct include:
"Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child," (CA Penal Code §269), various laws on committing sodomy with minors (CA Penal Code §286), "Any person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in state prison for 3, 6, or 8 years," (CA Penal Code
§288)
Drugs and Alcohol:
A person who is asleep or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, is not capable of giving valid consent.
According to California Penal Code §261:
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
Where a person is at the time unconscious of the nature of the act, and this is known to the accused."
Intimate Partner Violence:
It is important to note that consent is not automatically granted because of prior consensual acts, and a relationship between partners, such as a marriage or formal dating relationship, does not imply ongoing consent for every sexual contact.
According to California Penal Code §262:
"Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
Where a person is prevented from resisting by any intoxicating or anesthetic substance
Where a person was unconscious or asleep.
Was not aware, knowing, perceiving, or cognizant that the act occurred.
Where the act is accomplished by threatening to retaliate in the future against the victim."
Age:
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Please note that the age of consent in the state of California is 18.
According to CA Penal Code §265:
"Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony.
Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony."
Additional California laws on sexual misconduct include:
"Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child," (CA Penal Code §269), various laws on committing sodomy with minors (CA Penal Code §286), "Any person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in state prison for 3, 6, or 8 years," (CA Penal Code
§288)
Drugs and Alcohol:
A person who is asleep or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, is not capable of giving valid consent.
According to California Penal Code §261:
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
Where a person is at the time unconscious of the nature of the act, and this is known to the accused."
Intimate Partner Violence:
It is important to note that consent is not automatically granted because of prior consensual acts, and a relationship between partners, such as a marriage or formal dating relationship, does not imply ongoing consent for every sexual contact.
According to California Penal Code §262:
"Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
Where a person is prevented from resisting by any intoxicating or anesthetic substance
Where a person was unconscious or asleep.
Was not aware, knowing, perceiving, or cognizant that the act occurred.
Where the act is accomplished by threatening to retaliate in the future against the victim."