What Does “Affirmative Consent” for Sexual Activity Mean?

Consent plays a significant role in understanding sexual relationships. Under California law, it is an offense to engage in sexual activity with another person without consent. However, an individual is only consenting if they freely and willingly agree to engage in sexual activity. A knowledgeable California criminal defense attorney can enlighten you about the concept of affirmative consent for sexual activity.

At Law Offices of Andrew C. Janecki, I'm committed to offering reliable representation and personalized legal counsel to clients facing sexual assault or rape charges. As your legal counsel, I will evaluate every detail of your case and help prove consent as your defense. Also, I will represent you vigorously in every phase of the legal process and make sure you are treated fairly. My firm proudly represents clients across Santa Cruz, San Francisco, San Jose, Palo Alto, and Berkeley, California.

Understanding Consent under California Law

Under California law, consent may be described as "a person's positive cooperation in an act or attitude pursuant to an exercise or act of free will." This means that the person giving consent must:

• Act freely and voluntarily, and

• Understand the nature of the activity to which they are consenting.

The legal age of consent in California is 18 years. This means that a competent person who is 18 years or older in California is legally considered old enough to give consent to sexual activity.

Circumstances in Which Belief of Consent Is Not Valid

There are some situations where the belief of consent isn't valid. These include:

• The belief arose from the negligence, recklessness, or willful blindness of the offender

• The belief arose from the self-induced intoxication of the offender

• The defendant failed to take the necessary steps to ensure that the victim was giving their affirmative consent

Rather than assuming that the other person is ready to participate in the sexual act with you, it is important that you receive verbal confirmation or affirmative consent from them.

Affirmative Consent

Affirmative consent can be described as a mutual and voluntary decision between participants to engage in sexual activity. Affirmative consent must be informed, voluntary, and active. This means that through verbal confirmation or clear action, a person has granted their permission (given consent) to participate in a sexual act that is mutually agreed upon.

Furthermore, affirmative consent can be withdrawn and may be based on conditions. As the initiator of the sexual activity, it is your responsibility to obtain clear and affirmative responses from your partner at every stage of the sexual involvement. Hence, to protect yourself and your partner, you should avoid engaging in sexual acts in questionable situations.

How to Avoid Failure to Obtain Affirmative Consent

Here are some tips to help you avoid failure to obtain affirmative consent:

• Ask for consent from your partner verbally: "What would you like to do?" or "Do you want to have sex?"

• Keep communicating with the partner through all sexual activity: "Do you feel comfortable?", "Are you enjoying this?", "What can I do to give you more pleasure?"

• Communicate after sexual activity: "Did you enjoy it?" or "Do you want to stay over?"

• Avoid engaging in sexual activity when either participant is significantly drunk or high.

• Understand that hooking up with a stranger or someone who isn't an acquaintance may lead to misinterpretations and misunderstandings.

• Check in with your partner from time to time.

• Pay attention to whether your sexual partner is actively participating in sexual activity and is highly responsive.

If you or someone you know has been accused of sexual assault or rape in college, you need to reach out to a skilled Title IX sexual misconduct attorney right away. Your legal counsel can step in quickly and take proactive measures to prevent an embarrassing arrest or a formal charge.

Turn to Skilled Legal Direction

Facing sexual assault or rape charges can be terrifying. A criminal conviction can jeopardize your personal reputation and professional opportunities. In reality, alleged rape or sexual assault cases often involve a college-aged student who is sexually active but wants to be smart about avoiding improper conduct. If you have been charged with sexual assault or rape, retaining a highly-skilled criminal defense attorney is crucial for detailed guidance.

With more than 20 years of extensive experience, I have the knowledge and resources to represent individuals wrongfully accused of rape or sexual assault. As your legal counsel, I can thoroughly review and investigate all of the facts of your case, determine your best defense, and seek to refute the accusations against you. Above all, I will fight vigorously to uphold your rights and ensure that those allegations don't ruin your life.

If you're facing sexual assault or rape allegations, proving affirmative consent might be your best defense. Contact my firm—Law Offices of Andrew C. Janecki—today to schedule a simple case assessment with a reliable sexual misconduct attorney. I can offer you the comprehensive legal guidance and aggressive representation you need in your case. My firm is proud to represent clients across Santa Cruz, San Francisco, San Jose, Palo Alto, Berkeley, and the rest of California.