Consent Defense in Sex Crime Allegations

There are all sorts of different defenses that can be utilized in sex crime cases, obviously, depending on the facts and circumstances of the case. What happened, who's involved, whether there are witnesses, the alleged victim's age — a whole host of factors play into what the defense is going to be.

Sometimes there is no defense, and you're just doing damage control and trying to mitigate the case to get the best resolution.

But if it is a case where there is a defense, probably the number one defense that I've seen in sex crime cases over the last 26 years of working on the defense side. I worked for the DA's office in the early 1990s; I worked for a Superior Court Judge for a time as his research attorney and kind of right-hand man.

I would say the number one defense is consent. In other words, whatever happened, the other party consented to it.  They agreed to it, so I didn't do anything wrong.  Two consenting adults have sex or engage in some sexual activity — that's not criminal.

For certain crimes, such as rape and sexual assault, defendants can't be guilty if their victims legally consented to the conduct. Rape is defined under California Penal Code 261 PC. Sexual battery is defined under Penal Code 243.4 PC. 

Best Defense in a California Sex Crime Case

Of course, if a person is underage, you cannot use this defense because someone under 18 in California cannot consent to any sexual activity.  So, usually, we're going to see this defense used in an adult case.

Often I see maybe an alleged victim getting drunk or using some drugs and then end up having sex and then having regrets the next day or sometime after that.

The involved party can't believe that they're being accused of something when they felt that the person was okay, or maybe they were drunk too and that they both consented and agreed to have the sex.

Alleged Victim Must Be at Least 18 Yeas Old

Consent is a defense to a sex crime in most instances, as long as an alleged victim is over the age of 18, and consent can come in many forms.  There are different ways that I've seen sex crimes come up.

Sometimes the person gives consent at the beginning.  In other words, sometimes, at the beginning of an encounter, one party or both parties agree to the sex, and then during the middle, one of the parties says they don't want to have sex anymore, and the other party proceeds to have sex with them anyway.

This would be a problem because once somebody no longer consents to an act, if you force your way through it, then you're going to end up getting charged and then potentially convicted if they can prove that you ignored their explicit invocation of them not wanting to have any more sexual contact with you.

Other times, the person passes out drunk or has pills or whatever the case may be, and then the additional party proceeds to have sex with them anyway without getting their consent.  If that can be proved, they'd be in a position where they could mount a criminal case against the party that's forced the other party to have sex.

Intoxication Defense in Sex Crime Cases

So, it really depends on the surrounding circumstances of the case; what's going on, and intoxication sometimes is a defense as well.  In other words, if both parties are intoxicated and have sex, it's a real tough road for the prosecutors to prove that one party or the other is an aggressor and is somehow responsible for a crime.

If both parties were drunk and agreed to have sex, having regrets about it later will not be a way to prosecute somebody for a criminal offense.  Everybody has to know what they're doing, and somebody has to take advantage of the situation where we're talking about a scenario where somebody's passed out drunk.

Reasonable Belief Victim was an Adult

So, that's another scenario I see where consent is at issue.  Sometimes you have a system where somebody consents to have sex, and it turns out that person is under the age of 18; now, the authorities are prosecuting the person that had sex with him.

This area where consent would be relevant is if the person who had sex with the underage person believed or reasonably believed that the other party was 18 years or older under the circumstances.

Let's say they showed him a fake ID.  They looked like they were 18 years or older, and all the surrounding circumstances and such that the person genuinely believed the person was at least 18 years old, then that would be a defense to the crime, that they thought they were of age.

They consented to the sex or the sexual touching, and therefore, they felt they were okay to have sex with that person.  That could be a complete defense to a sex crime in that scenario. So, long story short, you have to figure out what type of a criminal case you have, and if it's a sex crime case, you've got to decide whether or not consent is really at issue in the case.– whether that can be asserted as a defense or there's some other defense that applies.

I'm just giving you the best and most used defense I see, having done sex-crime cases for a long time, but other reasons apply to particular circumstances and issues.

The way we figure that out is that you pick up the phone.  You make the call.  You take the first step. Come and meet with me, and then we can figure out whether or not your sex crime case, if it's the San Fernando, for example, is one where you can use consent as a defense. Hedding Law Firm is a team of experienced criminal defense lawyers located at 16000 Ventura Blvd #1208 Encino, CA 91436. 

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