Soto

The Legislature has made it a crime to commit a lewd or lascivious act on a child under age 14. (Pen. Code, § 288, subd. (a).) It has mandated additional penal consequences when the act is committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim.” (Pen. Code, § 288, subd. (b)(1).) Unlike the crime of rape, there is no requirement that the lewd acts be committed “against the will of the victim.” Indeed, 20 years ago the Legislature specifically deleted language to this effect from the definition of the aggravated lewd act crime. (Stats. 1981, ch. 1064, § 1, p. 4093.)

Despite this change, and despite long-standing precedent holding that a child under age 14 is legally incapable of consenting to sexual relations, some Courts of Appeal have reasoned that consent is a defense to an aggravated lewd act charge because consent is logically inconsistent with the perpetrator’s use of force or duress. We disagree with this conclusion. We hold that the victim’s consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances. Thus, it is not error to so instruct a jury. Because the lower…