What is SB 258? Frequently Asked Questions

SB 258 is a bill introduced in the California Legislature by Senator Aisha Wahab. In addition to Senator Wahab, SB 258 is co-authored by nine Senators and nine Assembly members. The bill would change what counts as rape in some cases involving people with disabilities.

Rape is when someone has sex without agreeing. Rape is wrong because you get to decide what happens to your body and people should respect that choice. The law says rape is not fair or safe. Rape is against the law. If someone forces another person to have sex, they can be arrested and punished. California Penal Code Section 261 is a law that makes different types of rape a crime. It lists out what counts as rape. There are seven types of rape described in Sections 261(a)(1)-(7).

SB 258 changes what counts as rape under Section 261(a)(1). This provision is about a type of rape involving people with disabilities.

Section 261(a)(1) limits a certain type of rape involving people with disabilities.

It says rape happens if both:

• A person has sex with someone who cannot give consent because of their disability. The law defines consent as a clear yes to sex. It is a clear yes if both people: agree with what’s happening, understand what they are saying yes to, and make the choice freely without pressure or fear.
• The other person knows (or should know) that the person cannot give consent.

A prosecutor saying there was rape under 261(a)(1) must show the person’s disability prevents them from agreeing to sex.

Right now, this part of the law applies if two people are not married. But there is a spousal rape exception. That means if two people are married, Section 261(a)(1) does not apply to them. Instead, if two people are married, the prosecutor has to say the rape fit a different part of Section 261 or another law.

SB 258 would make a change so that the crime could apply even if the two people are married to each other.

California lawmakers created Section 261 in the 1890s. Back then, lawmakers believed a husband had a right to have sex with his wife, even if she did not agree. They believed a husband could not rape his wife. Because of this, rape only applied if people were not married. This came from sexism, when women are treated worse than men, and ableism, when disabled people are not treated equally.

Over time, people began to see rape can happen in marriage. In 2021, California changed Section 261. Now most crimes of rape apply regardless of marriage. But one part of the exception stayed.

Section 261(a)(1) which says its rape if a person with a disability cannot give consent only applies to people who are unmarried. Some people in the disability community asked for the exception to continue.

Section 261(a)(1) talks about whether a disabled person has the “capacity” to consent to sex. “Capacity” means that a person can make their own choices. Capacity to consent to sex means they can make their own choices about sex.

The problem is that our legal system often shows ableism. People with disabilities are not treated equally and have their rights taken away. When Section 261(a)(1) is used, it is usually about a person with an intellectual or developmental disability (I/DD). Courts have found that people with I/DD do not have capacity to consent to sex. This happened even when the person lives in the community with supports and makes everyday decisions.

Often, the real problem in these cases is not capacity. The real issues were force, staff misconduct, or lack of consent. But when courts wrongly say a person with I/DD does not have capacity, it takes away their autonomy. Autonomy is the ability to make your own choices. These rulings can hurt a person’s right to make sexual choices in the future.

Right now, Section 261(a)(1) does not apply to married people. Married people with I/DD do not have to worry about these capacity rulings. But most people with I/DD are not married. The law does apply to unmarried people with disabilities. For unmarried people with I/DD, Section 261(a)(1) can lead to unfair disempowering judgments about their ability to make sexual choices.

Yes. Lawmakers should update rape laws to remove old rules about marriage. These rules are rooted in sexism.

But there is another problem too. Section 261(a)(1) has been used to make unfair rulings about people with I/DD and their ability to make sexual choices. Removing the exception means courts might make bad rulings for married people too.

If lawmakers remove the marriage rule, they should also fix how the law thinks about capacity. This would protect the rights of all people with I/DD.

As introduced, DREDF opposed SB 258. DREDF said it would only stop opposing if the bill was changed to address problems with capacity rulings. You can read our Oppose Unless Amend letter here.

For months, DREDF and its partners talked to lawmakers. They explained how courts often make mistakes when they decide a person with a disability doesn’t have capacity under Section 261(a)(1). DREDF asked the author to make changes.

DREDF shared key principles about capacity:

• We presume people with disabilities have capacity to make choices about sex
• The rules for showing capacity should not be too strict
• Capacity should be judged with supports and accommodations in place, like supportive decision-making

Senator Wahab’s office worked collaboratively with DREDF and its partners. Senator Wahab agreed to make changes to help protect the rights of unmarried people with disabilities and create guardrails for all people with disabilities.

Because of these changes, DREDF is no longer opposed to SB 258. DREDF is now neutral on SB 258.

SB 258 was changed to add a new definition. The phrase “incapable, because of a mental disorder or developmental or physical disability, of giving legal consent” is now defined. It uses the same language as Penal Code 261.6, which already defines consent.

That means: if a person with a disability can understand what sex is and is acting freely and voluntarily, then the person has capacity to consent. Capacity means being able to make your own choice. This is like how capacity to consent to marriage works in California law. This is a big improvement in the law.

SB 258 also says capacity must be judged with a person’s supports and accommodations in place at the time. This matches AB 1663, California’s Supported Decision-Making Law enacted in 2022. This is also a big improvement in the law.

Finally, SB 258 now says: “A person with a mental disorder or mental or physical disability shall not be presumed to be unable to give legal consent to sexual intercourse due to that disability.” DREDF strongly agrees with this principle.

DREDF and its partners thank Senator Wahab and her staff for working with us to make these positive changes. The changes are published on the California Legislative Information page.

So far, three committees have voted yes for the bill. They are the Senate Committee on Public Safety, the Senate Committee on Appropriations, and the Assembly Committee on Public Safety. There were only “yes” votes for the bill. No one voted against the bill.

SB 258 is now at the Assembly Committee on Appropriations. If it passes there, the next step is for the Governor to decide whether to sign the law.

We wanted more time to work on the bill and to allow more people to participate and share their views. We agree that people with disabilities, including I/DD should be part of the process. We asked for SB 258 to become a two-year bill to allow that to happen.

There were additional changes that we wanted. We asked that the law include an affirmative statement that people with disabilities are presumed to have capacity. The supporters of SB 258 thought this might cause problems in cases about a person who was intoxicated or not conscious. We did not agree – but we were unable to convince the author’s office to include the statement we wanted. As a practical matter, the prosecutor must prove, beyond a reasonable doubt, that the disabled person does not have capacity. The new statement underscores this obligation.

For these reasons, we moved our position to neutral.

Sometimes, disability rights groups do not agree with each other, even when they all care deeply about the community. We agree with DRC that people with disabilities including I/DD should be part of the legislative process when a law will affect them. All stakeholders should work hard to make that happen. But we disagreed with DRC’s request that we stop working on the bill – we thought walking away would be worse for people with disabilities.

DREDF did not want SB 258 to pass without amendments. We believed SB 258 could be improved. We thought it was important to work toward making the law better for all people with disabilities, married and unmarried. We believe that the results are real and worthwhile.

You can share your thoughts about SB 258. You can talk to DREDF, to Senator Wahab’s office, or to other organizations like DRC.

DREDF wants to make the law better and stronger for people with disabilities. If more changes are needed, we will work on them. We welcome the engagement of Californians with disabilities including I/DD. We will continue to improve the law step by step. That is how the lawmaking process works.