I concur fully in the majority’s holding that a child less than 18 years of age who engages in consensual incestuous sexual relations *339with an adult is not an accomplice to the crime of incest (Pen. Code, § 285).1 Unlike the majority, however, I believe this conclusion continues to be supported by the rationale of prior decisions relying upon the circumstance that a minor is incapable of giving legal consent to sexual intercourse with an adult. The 1970 amendment of section 261 (defining the crime of rape) and enactment of section 261.5 (defining the crime of unlawful sexual intercourse with a minor) did not abrogate the principle that a minor lacks the capacity to give legal consent to sexual intercourse.
Before 1970, rape was defined to include “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, ... [10 1-Where the female is under the age of eighteen years; . . .” (Stats. 1913, ch. 122, § 1, p. 212.) Thus, a minor who voluntarily engaged in sexual intercourse with an adult was deemed unable to give legal consent to such an act, and actual consent was no defense to rape or related crimes. In People v. Verdegreen (1895) 106 Cal. 211 [39 P. 607], for example, we held that actual consent was not a defense to the crime of assault with intent to commit rape. Our opinion explained: “It is the declared policy of our law, as expressed in [section 261], that any female under the age there fixed shall be incapable of consenting to the act of sexual intercourse; and that one committing the act with a girl within that age shall be guilty of rape, notwithstanding he obtain her actual consent. ... To hold that one of this class, although incapable of consenting to sexual commerce, could nevertheless give her assent to an assault upon her person, made for the express purpose of accomplishing the sexual act, would be to largely emasculate the statute, and defeat in great part its beneficent object. . . . The incapacity extends to the act and all its incidents. [1Q It is true that an assault implies force by the assailant and resistance by the one assaulted; and that one is not, in legal contemplation, injured by a consensual act. But these principles have no application to a case where under the law there can be no consent. Here the law implies incapacity to give consent, and this implication is conclusive.” (Id. at pp. 214-215.)
In People v. Stratton (1904) 141 Cal. 604 [75 P. 166] (Stratton), we extended this reasoning to the crime of incest. In rejecting the defendant’s assertion that incest requires the consent of both individuals engaging in the act, we stated in dictum: “If the prosecutrix, being of the legal age of consent, consents to the incestuous intercourse, unquestionably she is particeps criminis, and her testimony, like that of any other accomplice, uncorroborated, is insufficient to uphold a conviction. [Citation.] But if, upon the other hand, she is the victim of force, or fraud, or undue influence, or is too young to be able to give legal assent, so that she does not willfully and *340willingly join in the incestuous act, she cannot be regarded as an accomplice. [Citation.]” (Id. at p. 609.)
In People v. Stoll (1927) 84 Cal.App. 99 [257 P. 583] (Stoll), the Court of Appeal relied upon the foregoing passage from Stratton in holding that a minor cannot be considered an accomplice to the crime of incest with an adult, because the minor is incapable of giving legal consent to sexual intercourse. Rejecting the defendant’s argument that any minor old enough to commit a crime also could be an accomplice to incest, the court stated the defendant had overlooked the circumstance that, regardless of the minor’s actual assent, she could not be said as a matter of law to have consented to the intercourse. (Stoll, at pp. 101-102.) As noted in the majority opinion (ante, at pp. 332-333), this analysis and holding subsequently have been followed in a consistent line of Court of Appeal decisions.
The majority determines that the reasoning of Stoll and its progeny has been undermined by subsequent legislative developments, which, according to the majority, indicate the Legislature implicitly has acknowledged that a minor is capable of giving legal consent to sexual relations. I disagree with the majority opinion’s assessment of the effect of this legislation. The Legislature has indicated that a minor actually can consent to (i.e., voluntarily participate in) sexual intercourse, but it has not altered the established principle that a minor legally cannot consent to such an act.
In 1970, the Legislature enacted section 261.5, which defines the crime of unlawful sexual intercourse with an individual under the age of 18 years. (Stats. 1970, ch. 1301, § 2, p. 2406.) At the same time it enacted section 261.5, the Legislature amended section 261 to eliminate from the definition of rape an act of sexual intercourse with an individual less than 18 years of age. (Stats. 1970, ch. 1301, § 1, p. 2405.) Under the amended statutory scheme, all sexual intercourse with a minor is unlawful pursuant to section 261.5, but such intercourse does not constitute rape pursuant to section 261 unless it is accomplished under the circumstances specified therein. Pursuant to the 1970 version of section 261, as in the prior version of the statute, sexual intercourse with a female constituted rape if, among other things, she was “incapable, through lunacy or other unsoundness of mind, ... of giving legal consent,” or her resistance was overcome by force or violence. (Stats. 1970, ch. 1301, § 1, p. 2405.)
Therefore, in a prosecution charging the rape of a minor pursuant to the 1970 Version of section 261, on the ground that the minor’s resistance was overcome by force or violence, the issue whether the minor voluntarily participated in—or actually consented to—the sexual intercourse sometimes *341became relevant. This circumstance, however, does not establish that the Legislature intended that a minor would be capable of giving legal consent to sexual relations. On the contrary, by enacting section 261.5, the Legislature simply recodified, in a separate statute, the preexisting principle in section 261, former subdivision (1), that as a legal matter a minor cannot consent to sexual intercourse with an adult so as to relieve the adult of criminal responsibility for engaging in such an act. (See Michael M. v. Sonoma County Superior Court (1981) 450 U.S. 464, 494-495 & fn. 9 [101 S.Ct. 1200, 1217, 67 L.Ed.2d 437] (dis. opn. of Brennan, J.) [tracing legislative history of California’s statutory rape law as set forth in § 261, former subd. (1), and § 261.5].) In turn, the amendment to section 261 made the rape of a minor a more serious crime by requiring it to be accomplished under one or more of the additional circumstances specified in the statute, such as by force or violence that overcame the victim’s resistance.
Contrary to the conclusion of the majority, a determination that a minor is unable to give legal consent does not require that every violation of section 261.5 also constitute rape pursuant to section 261, subdivision (a)(1). The 1970 version of this subdivision specified that a rape occurred where the victim was “incapable, through lunacy or other unsoundness of mind, ... of giving legal consent.” (Stats. 1970, ch. 1301, § 1, p. 2405, italics added.) This provision was retained from the prior version of the statute, which also had defined rape as sexual intercourse with an individual under the age of 18 years. Thus, the Legislature did not consider a minor to be of “unsound mind” and unable to give legal consent on that ground; otherwise, there would have been no reason to include the separate subdivision regarding sexual intercourse with a minor. Furthermore, the current version of section 261, subdivision (a)(1), specifies that rape occurs “[w]here a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent . . . .” (Italics added.) The status of being a minor cannot reasonably be considered a mental disorder or a developmental or physical disability. Accordingly, if a minor is unable to give legal consent because of his or her age, sexual intercourse with a minor who voluntarily participates in the act does not necessarily constitute rape pursuant to section 261, subdivision (a)(1).
In support of its analysis, the majority opinion relies in part upon Michael M. v. Superior Court (1979) 25 Cal.3d 608, 614 [159 Cal.Rptr. 340, 601 P.2d 572], which contains dicta indicating that the Legislature, when it adopted section 261.5, “necessarily acknowledged the obvious truism that minor females are fully capable of freely and voluntarily consenting to sexual relations. If this was not so, the charge brought in these cases would uniformly be one of forcible rape. (§ 261.)” This statement, however, responded to the defendant’s contention that section 261.5 “creates adverse *342inferences concerning the capacity of minor females to make intelligent and volitional decisions.” (Michael M., supra, 25 Cal.3d at p. 614, italics added.) As explained previously, a minor voluntarily can engage in sexual relations, but he or she cannot legally consent to such acts. The foregoing statements in Michael M. were concerned with actual consent, not legal consent, and they do not support the majority’s reasoning.
The majority opinion’s analysis also conflicts with section 261.6, which states in relevant part: “In prosecutions under Section 261 . . . , in which consent is at issue, ‘consent’ shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” The Court of Appeal correctly has determined that the concept of actual consent defined in section 261.6, as relevant in a prosecution for rape, is distinct from the concept of legal consent.
In People v. Young (1987) 190 Cal.App.3d 248 [235 Cal.Rptr. 361], the defendant was convicted of the forcible rape of a child under the age of 14 years. At the time of the offense, section 261 defined rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator “[w]here it is accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person or another.” (Stats. 1980, ch. 587, § 1, p. 1595, italics added.)2 The decision of the Court of Appeal stated: “Where ... 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.” ’ [Citation.]” (People v. Young, supra, 190 Cal.App.3d at p. 257.) The court further stated that “in any sexual intercourse case involving a child-victim under the age of 14, ... a defendant is subject to conviction of violations of sections 261.5 (unlawful sexual intercourse with female under age 18) and 288, subdivision (a) (lewd or lascivious acts with child under age 14) even where the child consents to the sexual intercourse.” (Id. at p. 257, fn. 2, italics added.) The Court of Appeal thus properly recognized that a defendant might violate section 261.5 without also violating section 261, and that, although a minor cannot give legal consent to sexual intercourse, he or she3 voluntarily and willingly can participate in the act, and thus actually consent within the meaning of section 261.6.
Furthermore, the circumstance that a minor can be held criminally responsible for illegal sexual conduct does not undermine the legal principle that *343minors cannot give legal consent to sexual intercourse, as the majority opinion suggests. The decision in Stoll rejected a similar contention when it concluded the minor victim could not legally consent to sexual intercourse, even though the minor was more than 14 years of age and thus, pursuant to Penal Code section 26, was deemed capable of committing a crime. (Stoll, supra, 84 Cal.App. at p. 102.) Similarly, although a minor lacks the legal capacity to enter into certain types of contracts (Fam. Code, § 6701), minors nevertheless are civilly liable for their torts (id., § 6600). The Court of Appeal has explained: “ ‘Infancy, being in law a shield and not a sword, cannot be pleaded to avoid liability for frauds, trespasses, or torts. . . .’ ” (Ellis v. D’Angelo (1953) 116 Cal.App.2d 310, 313 [253 P.2d 675].) By analogy, a minor’s potential responsibility for criminal sexual conduct does not compel the conclusion that a minor can give legal consent to sexual intercourse.
For these reasons, the majority opinion errs in concluding the Legislature has abrogated the rule that a minor cannot give legal consent to sexual intercourse. The rationale underlying Stoll and its progeny remains valid and has not been undermined by the 1970 amendment to section 261. Therefore, although I join the majority’s decision to adhere to Stoll’s holding that a minor cannot be an accomplice to the crime of incest with an adult, I also would adopt the reasoning of Stoll as our own. I disagree with the notion that, under the governing statutes, the Legislature has rendered a minor, in any case, capable of giving legal consent to sexual intercourse.
Baxter, J., concurred.
Further undesignated statutory references are to the Penal Code.
The current version of section 261 defines rape as such an act “accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§261, subd. (a)(2).)
Section 261.5 has been amended to be gender-neutral.