9.5.2: Proving Involuntary Consent by the Victim’s Resistance

Under the common law, the victim had to manifest extreme resistance to indicate lack of consent. In modern times, the victim does not have to fight back or otherwise endanger her life if it would be futile to do so. The victim only needs to resist to the same extent as a reasonable person under similar circumstances, which is an objective standard(CALCRIM 100).

The use of force by the defendant could eliminate any requirement of victim resistance to prove lack of consent. If the defendant obtains consent using a threat of force, rather than force, the victim does not have to resist if the victim experiences subjective fear of serious bodily injury, and a reasonable person under similar circumstances would not resist, which is an objective standard

Threat of force can be accomplished by words, weapons, or gestures. It can also be present when there is a discrepancy in size or age between the defendant and the victim or if the sexual encounter takes place in an isolated location. The law’s position does not require the threat to be a threat of force; it can be any type of threat that prevents physical resistance.

If the victim does not physically resist the criminal act, the prosecution must prove that the victim affirmatively indicated lack of consent in some other manner. This could be a verbal response, such as saying, “No,” but the verbal response must be unequivocal. In California the law states that a verbal “No” during the act of sexual intercourse is sufficient, and the defendant who continues with sexual intercourse after being told “No” is committing the criminal act of rape (In re John Z., 2011).

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