Legal Definition of ''Consent to Sex''
In the context of rape and other sexual assaults, "consent" is defined as the "positive cooperation in act or attitude pursuant to an exercise of free will." ( 261.6.)
To give consent, a "person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (Ibid.; accord, CALJIC No. 1.23.1.)
In short, that definition describes consent that is actually and freely given without any misapprehension of material fact. We shall refer to this as "actual consent."
Actual consent must be distinguished from submission. for instance, a victim's decision to submit to an attacker's sexual demands out of fear of bodily injury is not consent (People v. Guldbrandsen (1950) 35 Cal. 2d 514, 520 218 P.2d 977; People v. Peterman (1951) 103 Cal. App. 2d 322, 325 229 P.2d 444) because the decision is not freely and voluntarily made ( 261.6).
A selection by the victim of the lesser of two evils--rape versus the violence threatened by the attacker if the victim resists--is hardly an exercise of free will. (See People v. Lay (1944) 66 Cal. App. 2d 889, 893 153 P.2d 379.)
By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had "sufficient capacity" to give that consent. (See People v. Mayberry (1975) 15 Cal. 3d 143, 154 125 Cal. Rptr. 745, 542 P.2d 1337; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Decency and Morals, 774, p. 873.)
For example, if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape. (People v. Griffin (1897) 117 Cal. 583, 585-587 49 P. 711, overruled on others grounds by People v. Hernandez (1964) 61 Cal. 2d 529, 536 39 Cal. Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092.)
Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent.
The distinction between actual consent and legal consent is further illustrated by the statutory definition of rape.
Some of the various means of committing rape specified in the subdivisions of section 261 deal with the lack of the victim's actual consent while others deal with the victim's lack of capacity, i.e., with the lack of legal consent.
In the context of rape, "against the victim's will" is synonymous with "without the victim's consent." (People v. Cicero (1984) 157 Cal. App. 3d 465, 480 204 Cal. Rptr. 582; CALJIC No. 10.00.)
Therefore, by specifically referring to intercourse accomplished against the victim's will, subdivisions (a)(2) (force or duress), (a)(6) (threat of retaliation), and (a)(7) (threat of detention or deportation) of section 261 describe instances in which the victim has not actually consented. the same is true when the victim is not aware of the nature of the act (id., subd. (a)(4)(C)) or has been deceived into believing that the defendant is the victim's spouse (id., subd. (a)(5)). In those cases, there is no actual consent because the victim lacks "knowledge of the nature of the act or transaction . . . ." ( 261.6.)
By contrast, subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who lacks the capacity to give legal consent due to a mental disorder or a developmental or physical disability.