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An Overview of California’s Consent Laws

By Los Angeles Criminal Defense Attorney on August 10, 2023

Consent plays a critical role in specific legal contexts. These include the determination of certain sex crimes, such as sexual assault and statutory rape. The informed consent doctrine is key in determining whether a healthcare provider has acted negligently. Consent can also be a factor in Fourth Amendment rights, intoxication, and other legal issues.

What Constitutes Consent in California?

Specific guidelines define consent in California. Under state law, an individual consents only if they act freely and voluntarily and have knowledge of the nature of the act or transaction involved. For purposes of sex crimes, a current or previous marital or dating relationship is not sufficient to constitute consent to sex. Clear and voluntary communication is essential. Affirmative consent is a conscious and voluntary agreement. It is not the same as silence, lack of protest, or a lack of resistance.

What Role Does Consent Play in Specific Legal Contexts?

Consent can be a critical factor in various legal situations, including:

  • Sexual assault cases: It is important to understand the concept of consent as it applies to sexual encounters. The standard in California requires affirmative consent as opposed to “no means no” – the standard that means verbally rejecting sexual advances must be seen as withdrawing consent to sexual contact. Affirmative consent must be ongoing throughout sexual activity and can be taken back at any point.
  • Medical procedures and treatment: Informed consent is the process in which healthcare providers educate patients regarding the risks, benefits, and alternatives to a medical procedure or treatment. It is an ethical and legal obligation that originates from patients’ rights to direct what happens to their bodies. The patient must be competent to make a voluntary decision about whether to undergo the treatment or procedure.
  • Search and seizure: The Fourth Amendment to the U.S. Constitution guarantees protection against unreasonable search and seizure. Law enforcement must have probable cause and a warrant issued by a judge unless an exception to the requirement is present. Voluntary consent to a search is a clearly recognized exception. Consent may not be regarded as voluntary if a police officer asserts his official status and claim of right, and the occupant yields because of it.

What Is the Legal Age of Consent?

The age of consent to sex in California is 18. Anyone who engages in sex with a person under 18 can be charged with statutory rape, regardless of whether the act was consensual or initiated by the minor. Many states have “Romeo and Juliet” laws that allow two people in a close, committed relationship to lawfully engage in sexual activity before one of them turns 18. California has no such law. Engaging in sex with an individual under the legal age of consent means exposure to criminal liability.

Under state law, minors of any age may consent to medical treatment in certain situations, such as pregnancy, contraception, abortion, sexual assault or rape services, emergency medical services, and X-rays to diagnose child abuse or neglect. Minors 12 years of age or older can consent to treatment for infectious diseases, sexually transmitted diseases, AIDS/HIV, and drug or alcohol abuse. Minors 15 years of age and older may consent to general medical care.

Are You Facing Criminal Charges?

Consent can play a role in defense against criminal charges. If you have been accused of a sex crime, contact Werksman Jackson & Quinn LLP. Our Los Angeles sex crime defense lawyers will fight tirelessly to protect your rights and safeguard your future.

Head attorney Mark Werksman was awarded an AV Rating by Martindale-Hubbell, the highest possible rating for ethical standards and legal service.

Call (213) 688-0460 to schedule a complimentary consultation today. It’s time to have an attorney on your side that knows how to win.

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Posted in: Criminal Defense