Court says molester can't use consent as defense

(01-20) 16:45 PST SAN FRANCISCO -- A defendant charged with sexually abusing a child under 14 by using threats or coercion can't argue that the victim consented, the state Supreme Court ruled Thursday, resolving a 27-year dispute over the meaning of California's molestation laws.

Most molesting cases are charged under a law that makes it a crime to commit a "lewd or lascivious act" on a child under 14, who is considered incapable of consenting freely. Thursday's case, from Santa Clara, involved a more serious charge, molestation through force or duress.

A defendant convicted under that law faces a mandatory prison term of up to 10 years, or 20 years to life if the victim is physically injured. The maximum sentence for other molesting charges is eight years.

The court upheld Jaime Vargas Soto's convictions and 12-year sentence for molesting his 12-year-old cousin and her 11-year-old friend in 2005.

Prosecutors said Soto, then 19, had hugged and groped both girls over their objections, pressed his body against theirs and locked the door of his car when his cousin tried to leave. The defense argued that both girls were lying and also denied that Soto had used force or duress.

A state appeals court overturned Soto's convictions on the most serious charges, saying the trial judge had wrongly instructed the jury that consent is not a defense to molestation by duress. The court relied on a series of appellate rulings since 1984 that said a defendant charged with using duress - threats or coercion that overcame the victim's will - can claim that the minor freely consented.

In a 4-3 decision Thursday, the state's high court rejected those rulings.

"The victim's consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances," Justice Carol Corrigan said in the majority opinion.

She said the law once defined molestation by duress as a crime that was committed "against the will of the victim." The Legislature eliminated that language in 1981, Corrigan said, recognizing that "there is an inherent imbalance of power in an encounter between a child and an adult bent on sexual conduct."

In dissent, Justice Kathryn Mickle Werdegar said evidence that a victim consented to sex should be admissible in a case of molestation by duress, which "requires coercive conduct used to overcome the victim's free will."

She voted, however, to uphold Soto's convictions, saying there was no evidence that his victims had consented.

Soto's lawyer, Heather MacKay, said her client had molested the girls but should have been allowed to use consent as a defense to the duress charge.

The ruling "expands the definitions of force and duress beyond what I think most people would see as their common meaning," MacKay said.

The ruling in People vs. Soto, S167531, can be read at links.sfgate.com/ZKVG.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page C - 5 of the San Francisco Chronicle