What is the test for a sexual assault case where the alleged victim is under the age of legal consent?

This court recently recognized that in a child-victim case where the defendant was in a position of authority, evidence of force or fear which would probably be insufficient in an adult-victim case was sufficient to support rape convictions in that case. (People v. Jones (1984) 155 Cal.App.3d 153, 168-169, 202 Cal.Rptr. 162.)

In People v. Jones, supra, defendant was convicted on multiple counts of rape by threat of great and immediate bodily harm. Defendant lived with a woman who had four female children. The victims [190 Cal.App.3d 257] were three of these children and one of their friends. At the time of the alleged crimes, the victims ranged in age from nine to fifteen years. Although there was no evidence that defendant made any specific threats with respect to those counts for which he was convicted of rape by threat of great and immediate bodily harm, there

Page 366

Where, as here, the alleged victim is a child below the age of legal consent, whether the child has the capacity to "consent" to an act of sexual intercourse within the meaning of section 261.6 will usually be a question of fact. When it is charged that an act is against the will of a person, " 'consent is at issue.' " (People v. White (1986) 179 Cal.App.3d 193, 202, 224 Cal.Rptr. 467.) It will be for the trier of fact to determine, based upon the age and maturity of the child and the circumstances as shown by the evidence in a particular case, whether the child is capable of "positive cooperation in act or attitude pursuant to an exercise of free will" or able to "act freely and voluntarily" with "knowledge of the nature of the act or transaction involved." ( 261.6; see People v. White, supra, 179 Cal.App.3d 193, 202, 224 Cal.Rptr. 467.) ²

If it is found that the defendant accomplished an act of sexual intercourse with the child and the child is found not to have consented to the act within the meaning of section 261.6, the trier of fact may conclude that the act was committed against the victim's will. The next issue to be determined is whether the act was accomplished by means of force or fear of unlawful bodily injury. In a case such as the one at bar, in order to establish force within the meaning of section 261, subdivision (2), the prosecution [190 Cal.App.3d 258] need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the child. As stated in People v. Cicero (1984) 157 Cal.App.3d 465, 475, 204 Cal.Rptr. 582, "in this scenario, 'force' plays merely a supporting evidentiary role, as necessary only to insure an act of [sexual] intercourse has been undertaken against a victim's will." ³