As one may know, in a civil lawsuit involving sexual conduct with a person under age 18, consent can be a defense. However, in a criminal case, a person of that age in California is incapable of consenting to sexual conduct. This can create confusion for someone facing criminal charges involving sex with a minor in California (i.e. Penal Code § 261.5 (statutory rape) or Penal Code § 288a (lewd and lascivious acts with a child under 14), as such an apparent “loophole” in civil cases does not apply in a criminal case.
Not all consent by a minor in a civil case is valid, however. Since 2015, with the passage of Senate Bill 14 (SB 14), consent as a defense in a childhood sexual abuse was abolished when the person who commits the abuse is an adult in a position of authority over the minor. SB 14 is codified at Civil Code § 1708.5.5 and Evidence Code § 1106(c).
Civil Code § 1708.5.5 states “consent shall not e a defense in any civil action [for sexual battery] if the person who commits the sexual battery is an adult who is in a position of authority over the minor.”
Senate Bill 14 consequently seems to undermine years of California civil law, wherein consent by a minor was a viable defense. For example, in Doe v. Starbucks (2009) WL 5183773 at 7-8 (C.D. Cal. Dec. 18, 2009), the Central District of the U.S. District Court ruled, in deciding Starbuck’s motion for summary judgment, that “persons under 18 may, in some cases, have capacity to consent to sex with persons over 18 . . . the Court cannot agree with Plaintiff that a minor cannot legally consent to sexual intercourse with an adult.” While this statement of law has no place in a criminal court, it was a well-recognized case in a civil court.
Similarly, in Donaldson v. Dep’t. of Real Estate (2005) 86 Cal. Rptr. 3d, Donaldson lost his California real estate license after 24 years of having it when the Department of Real Estate discovered he had given marijuana to and then seduced his sixteen-year old sister-in-law. He then pled no contest to a criminal charge of statutory rape under Penal Code § 261.5 as s felony. The California Court of Appeal reversed the licensing board’s revocation of his license, stating that lack of consent could not be presumed by solely the victim’s age. We find this ruling particularly troubling because the act of giving the young lady marijuana first suggests grooming her into sex and almost a predatory intent.
Consent was also validated as a defense in a civil case involving S.M., a fourteen-year-old, suing the Los Angeles Unified School District in S.M. v. Los Angeles Unified School District (2015) Cal. Rptr. 3d 769, at 786. In S.M., a fourteen-year old middle school student alleged she was sexually abused by her male teacher at a school within the Los Angeles Unified School District. Although the teacher was convicted in criminal court and sentenced to three years in state prison, the school district was successful in arguing that the fourteen-year-old consented to having sex with the teacher and therefore was at fault. The trial court had even instructed the jury (this was a civil case) that “there is no age of consent and that a minor is capable of giving legal consent to sexual intercourse.” The case went to a three-week jury trial, resolving in the school district’s favor.
When the victim is an adult, consent erases a claim for sexual battery. However, to give consent, “a person must act freely and voluntarily to have knowledge of the nature of the act or transaction involved.” CALJIC No. 1.23.1.
Such consent must be given “without misapprehension of material fact.” People v. Giardino (2000) 82 Cal.App.4th 454, 460. For example, a physician cannot obtain consent to sexual battery by falsely explaining that a procedure is medically necessary in order to gain consent to commit sexual battery. Rains v. Superior Court (1984) 150 Cal.App.3d 933. Likewise, a person may validly place conditions or limitations on the consent to such touching and if the actor exceeds such limits, the earlier consent is no defense. Ashcroft v. King (1991) 228 Cal.App.3d 604, 609-610.
We bring this article to our reader’s attention to recognize the confusion that our civil courts have often spawned on this issue, but also to note that SB 14 will hopefully prevent such inconsistencies in the future. With the “Me, Too” movement gaining traction in California, we anticipate civil rulings that make their way to the appellate court level enforcing SB 14 and removing the sanctuary that sexual offenders found under California civil law.