What is the standard of evidence used by a rape defendant to prove that the alleged victim consented to sex?

arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice....'" (People v. Hartsch (2010) 49 Cal.4th 472, 497.)

Evidence Code section 1103, subdivision (c) prohibits a rape defendant from using evidence of specific instances of the alleged victim's previous sexual conduct with other persons to prove that the alleged victim consented. (People v. Franklin (1994) 25 Cal.App.4th 328, 334 [sexual conduct "encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity"].) Here, the only contested issues were whether Doe was unconscious or too intoxicated to consent, as Callaghan claimed, or whether she consented to sex, as defendant claimed.

Defendant testified he believed Doe had explicitly offered him sex when she earlier "raised the back of her skirt up" to show him her buttocks. However, neither advance consent of the victim nor a belief that the victim gave advance consent is a defense to sex crimes by intoxication. (People v. Dancy (2002) 102 Cal.App.4th 21, 3637.)