How is duress determined in a sexual assault case?

California, United States of America


The following excerpt is from People v. McCarthy, A138682 (Cal. App. 2015):

Appellant claims duress is determined under an objective standard based on the appellant's wrongful act, not the victim's response to it. (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto) [holding the victim's consent is not a defense to the crime of lewd acts on a child under age 14 under section 288 and has no effect when the lewd acts are committed by force, violence, duress, menace, or fear].) The People argue that the objective test only applies to violations of section 288 and not to violations of section 269 as charged here, because section 269 contains the language against the victim's will allowing for the court to look at the victim's response. We need not resolve this issue because, as detailed below, there was sufficient evidence appellant's actions created a

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