Consent, and Effect of Current or Previous Relationship (California)

Note that this definition requires “positive cooperation” and the “exercise of free will”,  as well as knowledge of the nature of the event that is going to happen, among other parameters.  It’s clearly not enough to just not object.  This statute speaks to the requirement that consent be informed – something that is all too often inadequate or missing altogether from the way in which the notion of “consent” is actually practiced by many in the BDSM world.


California Penal Code § 261.6 (2011)
§ 261.6.  “Consent”; Effect of current or previous relationship

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.

Cal. Pen. Code § 261.6 (2011)

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