Consent is Not a Defense to Aggravated Lewd Conduct on a Child Under Age 14

April 09, 2011 (Press-News.org) In People v. Soto, the California Supreme Court has clarified the case law interpreting section 288 of the Penal Code. In People v. Soto, the California Supreme Court has clarified the case law interpreting section 288 of the Penal Code. The court held that consent by a child 14 years and younger cannot be a defense to an aggravating charge of committing a lewd or lascivious act by force or duress.

California law, in section 288(a) of the Penal Code, prohibits lewd acts with a child 14 years or younger; California law classifies lewd conduct as a sex crime. Section 288(b)(1) is an aggravating provision of the statute that the increases the penalty for using force or duress while committing a lewd or lascivious act with the child.

"Against the Will of the Victim"

The semantic difficulty courts had been dealing with for the previous 27 years was whether the removal of the language "against the will of the victim" by the legislature, in 1981, from the then existing section 288(a) implied the removal of the element of consent in the context of force or duress in section 288(b).

People v. Cicero

In 1981, a panel of the California Court of Appeals decided People v. Cicero. The case involved the section 288(b) of the Penal Code, and the court concluded that because the definition of duress requires something done against one's will, the "by use of force, violence, duress, menace, or fear" language implies there is a component of consent.

Their argument was that if the child consented, there was not duress and therefore no aggravation of the charge. The dissent in Cicero complained that court was adding back in the consent language the Legislature had just removed.

People v. Soto

In Soto, the California Supreme Court revisits the Cicero case and the interpretation of section 288(b). The majority opinion notes that California law has long prohibited sexual contact with children 14 and younger. "The Legislature has drafted the child molestation laws to make issues regarding the child victim's consent immaterial as a matter of law in these cases."

The majority opinion examines the definition of duress:

"Because duress is measured by a purely objective standard, a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior."

The Supreme Court finds itself in agreement with the dissent from Cicero. The dissent in Cicero states: "In fact, under the plain language of the statute, the act in subdivision (b) can be committed with knowing consent and still be a violation of the subdivision, if force is used. Force is limited to something the perpetrator applies; it is independent of the actions or thoughts of the under-14 year old victim."

The court concludes, "Consent of the victim is not a defense to the crime of aggravated lewd conduct on a child under age 14."

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