How Does California Law Define ‘Consent’ in Sex Crimes Cases?

A central issue in many sex crimes cases is consent. California law recognizes that sexual activity between adults is lawful when all parties freely and willingly participate.

However, when sexual acts occur without clear and voluntary agreement, those acts can quickly become criminal offenses like sexual assault, rape or sexual battery.

Consent disputes often arise in situations involving alcohol use, previous relationships, ambiguous communication or misunderstandings about one person’s willingness to participate. When someone feels or claims they did not willingly agree to the sexual encounter, law enforcement and prosecutors investigate closely to determine if consent was truly given.

But what exactly counts as “consent” under California law?

We’ll explain how California courts, Los Angeles prosecutors, and campus Title IX investigators determine consent in sex crime allegations. You’ll learn how intoxication affects someone’s ability to consent, why prior intimacy doesn’t necessarily imply consent, and what police look for when investigating consent disputes. Understanding these nuances is critical if you’re facing an accusation or concerned about potential charges.

As always, if you or someone you know needs help with a specific situation, it’s best to speak directly with a legal expert. They can listen to the details of your case and advise you on the best course of action.

Under the California Penal Code, consent means an affirmative, freely-given agreement to engage in sexual activity.

State law defines consent as “positive cooperation in act or attitude pursuant to an exercise of free will.” This means the person must act freely, voluntarily, and with knowledge of the nature of the act.

Simply put, each person must willingly participate in the sexual encounter. Consent cannot be the result of force, threats, coercion, or deceit. If agreement to sex is obtained through “force, duress, menace, fear, fraud, or undue influence,” it is not valid consent.

Just because someone consented before, or even a few minutes earlier, does not mean they have given blanket permission for everything that follows.

California’s courts are clear: a person may withdraw consent at any time. If one partner revokes consent during intercourse (for example, by saying “stop” or pushing the other person away), the other must immediately cease.

It’s important to note that California law makes no distinction based on relationships when defining consent. Being in a dating relationship or marriage does not, by itself, imply ongoing consent to sex.

The Penal Code explicitly states that a current or former dating or marital relationship is not automatically consent in a sex crime case. Each sexual encounter requires its own consent from both parties.

In 2022, California eliminated the old “spousal rape” distinction, ensuring that sex with a spouse is treated the same as any other rape if it’s without consent.

Under California’s “rape shield” laws, an accuser’s prior sexual history generally cannot be used in court to suggest they were more likely to consent. A prosecutor cannot argue, and a jury cannot assume, that a victim “usually consents” or has a promiscuous past as evidence of consent in the current case.

This protects accusers from unfair character attacks and reinforces that only the accuser’s words and conduct in the incident itself are relevant.

Similarly, even if an accuser suggested using a condom or birth control during the encounter, that alone does not prove consent to the act.

California law is clear that such a request isn’t by itself an agreement to have sex. The focus is always on whether the person freely and voluntarily agreed to the sexual act in that moment.

Intoxication, incapacitation, and deception

Being intoxicated or otherwise incapacitated can negate a person’s ability to consent. California Penal Code provisions list specific circumstances where sexual acts are considered non-consensual.

For example, it is rape to have sexual intercourse with someone who is unconscious or asleep. It is also rape if someone is so intoxicated by alcohol or drugs that they cannot resist or understand the nature of the act, and the accused knows or should have known of this condition.

In plain terms, if a person is blacked out, passed out, or highly impaired, they are legally incapable of giving consent. This is similar to someone who is physically or mentally disabled to a degree that they cannot understand the act.

It doesn’t matter if they didn’t explicitly say “no” due to their condition; the law presumes they could not agree.

This means that if you engage in sexual activity with someone who is significantly intoxicated or incapacitated, you may be criminally liable if they could not comprehend or resist what was happening. The critical question is often the degree of impairment.

Mild vs extreme intoxication

Mild or moderate intoxication, where someone is tipsy but aware and communicative, is different from extreme intoxication, where they are disoriented or unconscious. Under California law, determining whether someone can legally consent often hinges on their ability to understand the nature of the act and freely make informed decisions.

If someone is mildly intoxicated — perhaps they’ve had a couple of drinks but can clearly engage in conversation, express their desires, and make conscious decisions — the law generally considers that they are still capable of giving consent. In this situation, the key is that the person must still possess enough mental clarity to make a voluntary choice.

On the other hand, extreme intoxication occurs when alcohol or drugs have significantly impaired someone’s cognitive abilities. Examples of extreme intoxication can include situations where a person:

  • Is unconscious or drifting in and out of consciousness
  • Cannot clearly understand where they are or who they’re with
  • Is severely disoriented or confused
  • Cannot physically or verbally express consent or refusal clearly
  • Exhibits clear physical signs of incapacitation, such as vomiting, stumbling, or inability to speak coherently

Under these conditions, the law presumes that the individual lacks the ability to consent, even if they never explicitly refuse or resist. Engaging in sexual activity with someone experiencing extreme intoxication can result in charges of sexual assault or rape, especially if the other person knew or reasonably should have known about their impaired condition.

In practice, prosecutors in California (especially in Los Angeles County) carefully scrutinize evidence of intoxication — such as witness testimony, surveillance footage, text messages and medical records — to assess whether the alleged victim was capable of consent. The degree of intoxication is a critical factor in determining whether a sexual act was consensual or criminal.

Fraud and trickery

Under the law, consent obtained by fraud or trickery is not true consent. If, for example, someone impersonates another person to obtain sexual favors or lies about a professional purpose of a sexual act, the consent is negated.

Ultimately, consent requires a conscious, informed, and voluntary agreement. If a person isn’t conscious, isn’t oriented due to intoxication, or is coerced by fear or deception, the law says there was no valid consent.

One of the biggest misconceptions is that “no one said no, so it must have been consent.”

California law and Los Angeles authorities reject this myth. Silence or lack of resistance does not equal consent.

A person is not required to fight back, resist physically, or yell to show they did not consent. The California Supreme Court long ago removed any requirement that a victim resist their attacker as a prerequisite for proving rape.

Many sexual assault survivors may freeze up out of fear, submit to a threat, or remain silent, none of which implies consent. Los Angeles District Attorney George Gascón has emphasized that public education aims to dispel the harmful myth that silence implies consent.

Non-verbal cues and the surrounding circumstances are crucial. Investigators and courts will look at what each party was doing and saying. Were there signs the accuser was uncomfortable or afraid – such as trying to push the offender away, crying, trembling, or simply frozen in panic? Such non-verbal signals can indicate that, despite a lack of verbal protest, the person was not a willing participant.

Coercion and duress

Coercion is another factor that invalidates consent. Any agreement to sex extracted through threats, pressure, or intimidation is not true consent.

California’s rape law explicitly includes acts accomplished by “force, violence, duress, menace, or fear” as lacking consent. “Duress” in this context means a direct or implied threat sufficient to coerce a reasonable person into doing something they wouldn’t otherwise do.

For example, if someone consents to sex because the other person threatens to harm them, their family, or their immigration status, that consent is not voluntary.

Evaluating the evidence

True consent can sometimes be given non-verbally through actions like active participation or guiding the other person. However, this kind of implicit consent can be very murky, and misunderstandings easily arise.

The safest course, and what the “affirmative consent” movement emphasizes, is clear, verbal agreement.

Under California law, the question will be viewed in light of all evidence: Would a reasonable person in the situation understand that the accuser did not freely agree?

Los Angeles prosecutors will ask: Did the accuser feel free to say no or otherwise indicate refusal? Or was the situation such that they felt compelled, intimidated, or unable to refuse? Context clues, such as power imbalances or prior communications showing hesitation, can all play a role.

The bottom line is that free, positive agreement must be present. Anything short of that can mean that legally there was no consent.

When a sex crime is reported in Los Angeles County, law enforcement and prosecutors will initiate an investigation. Police will treat all sexual assault reports as legitimate and serious.

Police interviews

If you’re a suspect, an investigator may contact you for an interview. Be aware that by this time, they likely have the accuser’s statement and possibly other evidence.

Everything you say will be scrutinized. Detectives are trained to obtain incriminating information. For example, saying “She never said no,” might be noted as an admission she also never affirmatively said yes.

Police may use strategic techniques, sometimes implying things will go easier if you cooperate or even misrepresenting evidence they have. Interviews are often recorded. They may also conduct a “pretext phone call,” where the accuser calls you, with police listening, to discuss the incident, hoping to elicit an apology or admission.

Anything said can be powerful evidence. 

It is very risky to talk about the incident with the accuser after the fact. Assume you are being recorded.

Evidence collection

Law enforcement will gather physical and digital evidence. This includes:

  • Medical exam findings (from a “rape kit”).
  • Photographs of injuries or the scene.
  • Clothing or bedding for forensic traces.
  • Electronic evidence – Text messages, social media, emails, phone records between you and the accuser.

Digital footprints often play a huge role. Texts asking for consent could help your case; texts apologizing for “last night” could be damning.

Location data, ride-share records, or surveillance video can also be relevant.

Social media posts made by the accuser shortly after an incident can corroborate lack of consent, while other messages might support a consent defense. Assume police will find existing digital evidence. 

Do not destroy or tamper with any evidence. This can be seen as consciousness of guilt or lead to new charges.

Victim and witness statements

Prosecutors will closely evaluate the accuser’s statement for credibility and detail. In many cases, consent boils down to a he-said/she-said scenario, so credibility is paramount.

Police will also seek out witnesses: Friends present, people who saw the accuser’s demeanor, or neighbors.

Investigators may also check for pattern evidence. If someone else previously reported a similar incident involving you, prosecutors might learn of it. Under Evidence Code §1108, prior sex offense accusations can sometimes be introduced.

In Los Angeles County, specialized deputy district attorneys in the Sex Crimes Division handle these cases. They will weigh whether they can prove beyond a reasonable doubt that the encounter was non-consensual. This involves looking at the totality of circumstances. They know that many non-consensual encounters don’t leave visible injuries.

If you are accused, realize that law enforcement might already be building a case. It’s crucial to get a lawyer involved early, even before charges are filed.

Title IX campus investigations vs. Criminal prosecutions in California

Many sex crime allegations, especially among college students, may trigger two parallel proceedings: a criminal case and a Title IX investigation at the school.

There are some differences between these processes.

Under California’s campus rules (sometimes called the “Yes Means Yes” law), affirmative consent is required.

This means each party must give an affirmative, conscious, and voluntary agreement; silence or lack of resistance is not consent. Consent must be ongoing and can be revoked. Many university policies state that someone asleep, unconscious, or incapacitated cannot give consent, and that consent must be enthusiastic and clear.

Standard of proof

The biggest difference is the standard of proof. In a criminal prosecution, the state must prove charges beyond a reasonable doubt.

In a Title IX campus proceeding, the standard is typically preponderance of the evidence. This lower threshold makes it easier for schools to find a student responsible.

Process and rights

Title IX investigations are administrative, not criminal. You won’t have the same rights as in court.

Your attorney’s role may be limited during school hearings. There’s no Fifth Amendment right to remain silent without potential school consequences. Procedures vary, but typically involve an investigator, interviews, evidence review, and a report. You can respond and provide evidence.

Live hearings may occur, but direct cross-examination of the accuser by the accused is generally not allowed. Rules of evidence are looser.

Outcomes

A Title IX proceeding cannot result in jail time. Possible sanctions range from probation and counseling to suspension or expulsion. These can drastically affect your education and future.

Even if a criminal case is dropped or you are acquitted, the school might still find you responsible. Conversely, avoiding school discipline doesn’t prevent criminal charges.

If you’re a student facing an accusation, an attorney who understands both systems is vital. Anything said in the campus process could potentially be subpoenaed in the criminal case. It’s a delicate balance.

California’s approach to consent has evolved. Los Angeles County has often been at the forefront.

  • Elimination of the spousal rape distinction (2022) – Rape is rape, regardless of marital status. Marriage or relationship status is irrelevant to consent.
  • “Yes means yes” culture and public awareness – The concept of affirmative consent is gaining wider traction. Jurors are increasingly familiar with the idea that consent must be affirmative and ongoing. Public service campaigns reinforce that silence is not consent.
  • Use of digital evidence and forensics – DNA, toxicology, and especially electronic communications (texts, social media) play an increasingly significant role in corroborating or refuting consent.
  • Multiple victim cases and #MeToo influence – Prosecutors may seek to introduce testimony from other accusers to show a pattern of behavior (permissible under Evidence Code §1108 in certain conditions).
  • Notable case law – Cases like In re John Z. (withdrawal of consent during intercourse can constitute rape) and People v. Giardino (defining intoxication level for incapacity to consent) continue to shape jury instructions.
  • Trauma-informed practices – The L.A. District Attorney’s office trains prosecutors to understand common victim behaviors (e.g., delayed reporting, continued contact with offender) so these are not misinterpreted as lack of credibility or evidence of consent.

The trend in Los Angeles is toward a more victim-sensitive handling of consent issues. Prosecutors are aggressive in pursuing cases they believe lack consent. However, a strong defense can still argue reasonable doubt.

Practical advice for defendants facing sex crime allegations

If you are under investigation or charged, certain steps are critical.

  1. Get an attorney immediately. As soon as you suspect an accusation, consult a qualified criminal defense attorney experienced in sex crimes before making any statements. Early legal counsel is invaluable.
  2. Exercise your right to remain silent (politely). Resist the urge to explain your side to police. You cannot talk your way out of it, but you can talk your way into deeper trouble. Respectfully decline to discuss allegations without your attorney. You can say, “Officer, I would like to consult an attorney before I talk about this.”
  3. Avoid contact with the accuser. Any contact can backfire and might be seen as witness tampering or intimidation, leading to additional charges or a protective order. Even an apology can be misconstrued. Instruct friends not to contact them on your behalf.
  4. Preserve evidence and identify witnesses (but don’t tamper). Save all communications (texts, emails, social media) between you and the accuser. Do not delete anything. List potential witnesses. Share this only with your lawyer. Do not alter, fabricate, or destroy evidence.
  5. Be cautious on social media and in conversations. Assume everything you say or post is being monitored. Do not post about the case or the accuser. Be wary of discussing the case with anyone except your attorney.
  6. Take care of yourself (carefully). Seek support from a trusted counselor or therapist (confirm confidentiality with your lawyer). Lean on trusted family or friends for emotional support but avoid discussing case facts. Refrain from retaliatory behaviors.
  7. Plan your defense with your attorney. Be completely honest with your lawyer. They need all facts, good and bad, to defend you effectively. Discuss defense angles like actual consent, mistaken belief in consent, or lack of evidence.
  8. Refrain from common mistakes. Do not play amateur lawyer. Do not record calls with the accuser on your own. Do not send apologies or restitution hoping they will drop it. Do not ignore the situation. Avoid discussing the case with the media.
  9. Know when to fight and when to consider other options. Trust your attorney’s advice on the case’s strength. Sometimes, a negotiated plea might be considered to reduce charges or penalties. Never plead guilty to something you didn’t do without understanding the full ramifications.
  10. Protect your privacy and future. Manage your online presence. If the case ends favorably, explore options for sealing records.

Facing accusations related to consent can be daunting, and the stakes are extremely high.

If you or someone you love is under investigation or charged with a sex crime in California, it’s crucial to get experienced legal help immediately.

The Helfend Law Group has decades of experience defending clients in Los Angeles and throughout Southern California. Contact us today at 800-834-6434 for a confidential consultation about your case.

Published May 15, 2025.

References

Assembly Bill 1171, 2021–2022 Regular Session, California State Legislature, 2021.

California. Education Code. § 67386. California Legislative Information, 2024. LegiInfo

California. Evidence Code. § 1103. California Legislative Information, 2024. Justia Law

California. Evidence Code. § 1108. California Legislative Information, 2024. Findlaw

California. Penal Code. § 243.4. California Legislative Information, 2024. LegiInfo

California. Penal Code. § 261. California Legislative Information, 2024. LegiInfo

California. Penal Code. § 286. California Legislative Information, 2024. LegiInfo

In re John Z. 29 Cal. 4th 756. Supreme Court of California, 2003. Quimbee

People v. Giardino. 82 Cal. App. 4th 454. Court of Appeal of California, Fourth Appellate District, 2000. Justia Law

People v. Saez. 237 Cal. App. 4th 1177. Court of Appeal of California, First Appellate District, 2015. casemine.com