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Articles Posted in Sexual Battery/Assault

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Last year, California adopted a new approach to sexual assault cases that happen on state-funded college campuses. The new law became known nationwide for introducing an “affirmative consent” standard in all disciplinary hearings related to sexual misconduct.

Six months after the law went into effect; two California legislators want high school health education courses to spread the word about the affirmative consent standard. Senate President Kevin de Leon and Assemblywoman Hannah-Beth Jackson announced the introduction of SB695, a bill designed to require school districts where health education is a graduation requirement to make sexual violence prevention a part of the curriculum. Part of that would be to educate young men and women on the affirmative consent law.1

What is Affirmative Consent?

Essentially, the affirmative consent law puts the burden of proof on the accused in a university sexual assault disciplinary hearing to prove that their partner gave them permission to engage in sex for the entire duration of the activity.

Affirmative Consent Education

This means that if you are a college student in California, you need to seek a clear “yes” – verbally, or in the form of a nod or smile – from your partner before and during engaging in sexual activity. If either person is intoxicated or unconscious, consent cannot be given.2 The standard is no longer “no means no,” where consent can be implied unless the other person says no. It is now “yes means yes,” where consent cannot be implied at any time.

The shift in the burden of proof makes it tougher for a student to defend his or her conduct because the new law forces schools to apply a “preponderance of evidence” standard in disciplinary hearings. This means that the accused could be disciplined if the tribunal determines that there is enough evidence to show that the accused more likely than not committed the act.3 This is a lower standard than the “beyond reasonable doubt” standard of criminal trials, which requires that the tribunal find that no reasonable person could doubt that the accused committed the act.

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A bill recently proposed in California would introduce “affirmative consent” into state law. The new bill, SB 967, would require college students to obtain explicit consent before engaging in sexual activity. This bill explains that the person wanting to participate in a particular sexual activity with another person is responsible for getting explicit consent from the other person either verbally or through other “unambiguous actions” before engaging in the act.

The bill, co-authored by Sen. Hannah-Beth Jackson, D-Santa Barbara, and Assemblywoman Bonnie Lowenthal, D-Long Beach, would establish “affirmative consent” as the standard for determining whether consent had been given by the accuser in an on-campus sexual incident. This puts the responsibility on a person who wants to engage in sexual activity to ensure that he or she has explicit consent from his or her partner.

How is this Different from Current Sexual Assault Laws?

Current law regarding sexual consent puts the burden on the accuser to express a lack of Sexual%20Battery%20Charge%20-%20California%20PC%20243.4.jpg
consent to an alleged attacker by saying “no” or resisting. Prosecutors in a sexual assault case then must show that the accuser did not give consent or was unable to for some reason (such as intoxication). SB 967 shows a shift from the “no means no” policy on college campuses to a policy requiring both partners to explicitly say “yes.

The proposed legislation would prevent those accused of rape from using alcohol or drug intoxication as a defense for not knowing that the sexual behavior was not consensual. It also would not allow the existence of a dating relationship to automatically qualify as consent from both parties. In other words, consent must always be given by each party any time that sexual activity is taking place, regardless of a current or past relationship.

The criminal approach to rape cases typically requires the victim to prove that he or she said “no.” Affirmative consent however, shows a cultural shift that requires both sexual partners to say “yes” in order for their encounter to be considered consensual.

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Under California Penal Code section 243.4 it is illegal to touch an intimate part of another person against his or her will for the purpose of sexual arousal, sexual gratification, or sexual abuse.

A sexual assault charge is serious. If you are facing a sexual assault charge in Huntington Beach, the first thing you should do is contact an experienced Huntington Beach Criminal Defense Attorney at Wallin & Klarich. Hiring an attorney at the beginning of your case will ensure the best possible outcome in this serious matter.

Sexual Assault Prosecution in Huntington Beach

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If you have been arrested for sexual assault, your first step should be to contact an experienced Fullerton Wallin & Klarich attorney. We can form a strong defense strategy that could result in a dismissal of your charge. Here are some successful defenses that your sexual assault defense lawyers at Wallin & Klarich can raise on your behalf:

Defenses to Sexual Assault in Fullerton

Fullerton%20Sexual%20Assault%20Criminal%20Defense%20Attorneys%20888-280-6839.jpg Innocence

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Rape is a very serious crime in California. Rape is defined as an act of sexual intercourse with someone accomplished through force, threat, or fraud. If you are convicted of committing rape, you can be imprisoned in a state prison for up to a maximum of 8 years. Also, since this is a serious or violent felony, the conviction will be considered a strike under California’s Three-Strikes Law, and the rape conviction can be used to increase your future punishments if you are later convicted of another felony. Most importantly, you will be required to register as a sex offender for the rest of your life if you are convicted of rape. A criminal charge of rape will not only subject you to criminal penalties, but it will also greatly affect your personal life, your job, as well as your family.

Riverside%20Rape%20Criminal%20Defense%20Attorneys%20888-280-6839.jpg How will a Riverside criminal defense attorney help me in my rape case?

A criminal defense attorney can help you raise a strong defense that could release you of criminal liability. Several common defenses to rape include:

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Under California Penal Code section 243.4, it is unlawful for you to touch an intimate part of another person against his or her will for the purpose of sexual arousal, gratification, or sexual abuse.

In order to convict you of sexual battery in California, the prosecution will have to prove all of the following:

• You touched an intimate part of another person

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If you are charged with sexual battery in Orange County, you are probably scared and do not know what to do. That is because you probably know that sexual battery is a serious crime in California. The consequences if you are convicted of sexual battery are severe, which is why you need to speak to an experienced criminal defense attorney immediately if you are facing sexual battery charges.

Is Sexual Battery a Felony in California?

Sexual Battery in Orange CountyThe crime of sexual battery is a wobbler offense, meaning that it can be charged either as a misdemeanor or a felony in Orange County. Regardless if you are charged with a felony or misdemeanor, you face severe penalties if you are convicted of this crime, including a requirement to register as a sex offender for the rest of your life.

Under California Penal Code Section 243.4(e)(1), misdemeanor sexual battery is the non-consensual touching of the intimate part of another if you do this act for:

  • Sexual arousal
  • Sexual gratification; OR
  • Sexual abuse

PC 243.4 defines felony sexual battery in California as an act committed for the same sexual purposes as described above and is the non-consensual touching of the intimate part of:

  • Someone who was unconscious as to the nature of the act because he/she was fraudulently convinced that the touching was for professional purposes
  • Someone who was unlawfully restrained
  • Someone who was institutionalized and either medically incapacitated or seriously disabled; OR
  • Someone falling under “b” or “c” above who was forced to masturbate oneself or touch the intimate part of another

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About Wallin & Klarich

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.