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
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 fromCicero. 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."