Laws in California
The following excerpts are only intended to be partially explanatory of certain California laws pertaining to sexual misconduct. These excerpts are not intended to be an exhaustive description or list of California laws pertaining to sexual misconduct or inappropriate or criminal sexual behavior.
Excerpts from the California Penal Code, §§11165.1 and 261:
Sexual assault includes rape, statutory rape, rape in concert, incest, sodomy, oral copulation, sexual penetration, lewd or lascivious acts upon a child, child molestation and the following:
- Penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is emission of semen.
- Sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
- Intrusion by one person into the genitals or anal opening of another person, including the use of an object for this purpose, except that, it does not include acts performed for a valid medical purpose.
- The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.
- The intentional masturbation of the perpetrator’s genitals in the presence of a child.
Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under any of the following circumstances:
- Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent and this is known or reasonably should be known to the person committing the act;
- Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another;
- Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused;
- Where a person is at the time unconscious of the nature of the act, and this is known to the accused;
As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
- Was unconscious or asleep.
- Was not aware, knowing, perceiving, or cognizant that the act occurred.
- Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
- Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
- Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief;
- Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat.
As used in this paragraph, “threatening to retaliate,” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
California law also states that, “the essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime” (Code 263). California law further defines both marital rape (Code 262) and “statutory rape” (Code 261.5). Though laws vary from state to state, intercourse in which consent was not obtained or was obtained under coercive conditions will usually be considered rape.
Excerpt from Section 67386 of the California Education Code:
University policies concerning sexual assault, domestic violence, dating violence and stalking shall include an affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
Excerpts from Section 261.6 and 261.7 of the California Penal Code:
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, “consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289. Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent. In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.
Excerpts from Section 646.9 of the California Penal Code:
Any person who willfully, maliciously and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by:
- Imprisonment in a county jail for not more than one year, or
- By a fine of not more than $1,000, or
- By both that fine and imprisonment, or by imprisonment in the state prison.
For purposes of this section, “harasses” means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose.
Excerpts from Section 13700 of the California Penal Code and 6211 of the California Family Code:
“Domestic Violence” means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, person with whom the suspect has had a child or is having, has had a dating or engagement relationship, a child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected, or any other person related by consanguinity or affinity within the second degree.
For the purposes of this subdivision, “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to:
Sexual relations between the parties while sharing the same living quarters;
- Sharing of income or expenses;
- Joint use or ownership of property;
- Whether the parties hold themselves out as husband and wife;
- The continuity of the relationship;
- The length of the relationship.
Laws Outside California
Relevant Laws – By State
You can search for state-specific laws, policies and definitions related to sexual assault on the RAINN website. RAINN (Rape, Abuse and Incest National Network) is the largest national organization dedicated to issues around sexual violence.
Rape, Abuse and Incest National Network (RAINN)
Provides legal resources and where to find local legal help.
National Organization for Victim Assistance (NOVA)
Provides education and resources for victims of crime and crisis.
Office for Victims of Crime
Provides information on next steps and resources for victims of crime.
National Center for Victims of Crime
Provides assistance and resources for victims of crimes, including sexual assault.