Statutory Rape In California Or “Unlawful Sex With A Minor”

Understanding Penal Code 261.5

By: Diana Aizman

In California it is illegal for an adult (age 18 or older) to have sex with a minor (under age 18) regardless of whether the sex was consensual under penal code 261.5.1 The laws are premised on the assumption that a minor does not have the capability of giving informed consent to sex.  Regardless if the person does so willingly and voluntarily and with full knowledge of the nature of the act and without any type of coercion, intimidation or physical force.

It is irrelevant if the minor initiates the sex and imposes him or herself upon another person for the purpose of engaging in sexual intercourse. The incapacity of minors is written into the statute thereby creating “statutory” rape laws.

Elements Of The Case

Penal Code 261.5 is a “wobbler” offense, so that the prosecutor has discretion to charge the defendant with a misdemeanor or felony.

There are 3 elements to the crime of statutory rape:

  • You had sexual intercourse with another person (any degree of penetration constitutes intercourse)
  • The parties involved were not married to each other
  • The victim was under the age of 18

The entire concept of statutory rape is centered around the age of the victim. The age of the defendant is relevant to whether the offense is charged as a misdemeanor or a felony.

The exception to the law is if the victim who is under the age of 18 is married to the other party with whom he or she is having sex.

Resources On What To Expect During The Court Process:

Legal Defenses To Statutory Rape

There are defenses to statutory rape:

Honest Belief The Minor Was 18

If you had a reasonable and honest belief that the minor was at least 18, you could be acquitted of statutory rape. This is akin to or similar to the defense of “mistake of fact.”

Factors that a prosecutor, jury or judge acting as the trier-of-fact will look at include:

  • Circumstances of the relationship–did the parties just meet and where? Was it in a bar or party where there were only adults present?
  • Did the minor victim say he/she was 18 or over or even display a photo ID that looked genuine?
  • The appearance of the minor. Does the victim appear and act like an adult?
  • Did another person confirm that the victim was 18?

Mistake of fact is not available to a defendant who is over the age of 21 and the minor is under the age of 16.

False Accusations

A minor victim, like an adult, may have felt slighted by you or is seeking to punish you for rejecting him/her by falsely accusing you of having had sex. However, if there are no available semen samples to match your DNA, then other evidence may be needed to prove that you did engage in sexual intercourse.

Other evidence should be corroborative such as witnesses having seen you leave a party with the minor, having observed you kissing and fondling each other or making sexual comments. There are cases where a defendant was convicted based solely on the testimony of the minor victim.

If you are arrested or accused of any crime, you have the right to remain silent and to ask to speak to an attorney. Once this is conveyed to the police or prosecutor, all questioning must cease. Be sure to call an attorney immediately if this happens to you.

Legal Defenses In Depth:

Criminal Penalties

As indicated above, California statutory rape is a “wobbler” so that it can be charged as either a misdemeanor or a felony. The factors determining how the offense will be charged are:

  • If the defendant is no more than 3 years older than the minor, then he/she will be charged with a misdemeanor.
  • Should the defendant be more than 3 years older, the prosecution can elect to charge the defendant with either a felony or misdemeanor.
  • If the defendant is over the age of 21 and the minor under the age of 16, the prosecution can charge the offense as misdemeanor or felony, though if a felony is charged the penalties are enhanced.
PenaltiesMisdemeanorFelonyFelony (Defendant over 21, Victim under 16)
FineUp to $,1000 + Penalty AssessmentsContent 1 3Up to & 10,000 + Penalty Assessments
ProbationSummary or Informal ProbationFormal or Informal
County JailUp to 1 yearUp to 1 year County, 16 months 2 or 3 years2, 3 or 4 years
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Civil Penalties

Adult defendants convicted of statutory rape may also be required to pay a civil penalty in addition to any criminal fines. How much you will pay depends on the age disparity between you and the victim.

Less Than 2 Years YoungerAt Least 2 Years YoungerAt Least 3 years youngerDefendant over 21, Victim under 16)
Max Of $2,000Max of $5,000Max of $10,000 Max of $25,000


What If I did not know the victim was under 18?

Being unaware of the victim’s age would be a mistake of fact, which is a valid defense to statutory rape.  If you honestly and reasonably believed the victim was over age 18 at the time of the sexual intercourse, then you have a defense.

Can a minor be charged with statutory rape?

Yes.  It is possible for a minor to be charged.  One of the elements is that the victim is under the age of 18 at the time of the offense.  The court looks at the difference in age of the defendant and victim and it is still possible as a minor for you to be charged with statutory rape.

There does exist what is referred to as “Romeo and Juliet” exceptions, which are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age.  In California, there is a Romeo and Juliet exemption for consensual sex between minors who are three or fewer years apart in age.   However, this is a limited exception because it reduces the offense from a felony to a misdemeanor.  The conduct is still illegal, but someone protected by this exception could see reduced jail time and fines.

What If I was falsely accused?

Unfortunately this is the type of offense that is sometimes the result of false accusations, like other sexual crimes.  Statutory rape charges are sometimes initiated out of revenge or anger, often initiated by a minor’s parents because they do not condone who their child is dating.

Is oral sex covered under statutory rape?

Oral sex is not covered under California’s statutory rape law since it requires that a person engage in sexual intercourse with a minor. Sexual intercourse only refers to vaginal penetration by the penis.

However, you can be charged with oral copulation with a minor under Penal Code 288a. Like statutory rape, it is irrelevant if the minor gives consent and does to willingly, voluntarily and with full knowledge of the nature of the act. It is also a wobbler offense.

Do I have to register as a sex offender?

Under California law a conviction for statutory rape does not require a defendant to register as a sex offender.1 There are several related sex offenses that do require registration including rape.

  1. California Penal Code 290 (a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses. []

Difference Between Rape & Statutory Rape

Statutory rape and the crime of rape are two separate offenses.  Under California law, rape is an act of sexual intercourse against the will of the victim that can occur under a variety of circumstances, including when:

  • the victim is prevented from resisting due to alcohol or drug intoxication.
  • the assailant uses physical force or the threat of force to overpower and control the victim.
  • the victim fears that she or he or another will be injured if the victim does not submit.
  •  the assailant uses duress, such as a direct or implied threat of hardship or retribution, to coerce the victim.
  •  the assailant uses force, fear, or threats to accomplish sexual intercourse against the will of the spouse.

The crime of rape takes into consideration consent of the victim, whereas consent is irrelevant for statutory rape.  Rape is a felony, which is punishable by 8 years in state prison, and counts as a “strike” under California’s 3 strikes law.[3]   A rape conviction requires registration as a sex offender for the offender’s lifetime.

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Next Steps

If you have been arrested and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending statutory rape case with an attorney contact the Aizman Law Firm at 818-405-9117 for a free confidential consultation.

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Diana Aizman
Founding Attorney
(818) 351-9555
Blithe Leece

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  1. California Penal Code 261.5 (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age. (b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. (e) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in thefollowing amounts: (A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000). (B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000). (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000). (D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000). (2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature. (3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. []