Donaldson

The question here is whether the Department of Real Estate (Department) possesses the power, under pertinent statutes and regulations, to revoke a real estate license based on the licensee’s conviction of unlawful intercourse with a minor, where the evidence fails to establish that the minor participated unwillingly in the conduct underlying the conviction. The Real Estate Commissioner (Commissioner) assumed such a power here, relying solely on a regulation that authorizes revocation where a licensee is convicted of a sex crime involving a “non-consenting participant.” While conceding that the 16-year-old victim may have participated willingly in the conduct in question, the Commissioner concluded that her age rendered her categorically incapable of giving “legal consent” to that conduct. The Commissioner thus relied upon a presumption which in an earlier time was judicially inferred from the legislative creation of the offense of “statutory rape.” That crime, however, was abolished 35 years ago, and the California Supreme Court has authoritatively declared the concomitant presumption of nonconsent to have been likewise abrogated. Accordingly, a minor victim of a sex…