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

Understanding Penal Code 261.5

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.

The Law In California

The laws are premised on the assumption that a minor does not have the capability of giving informed consent to sex.  The incapacity of minors is written into the statute thereby creating “statutory” rape laws.  The age of consent can vary from state to state.

In California, statutory rape is often called “unlawful sex with a minor”.  Under the California Penal Code, statutory rape is defined as when any person engages in sexual intercourse with a person under the age of 181 For sentencing purposes the most determinative factor in a statutory rape charge is the difference in age of the victim and defendant.  In California, the crime of statutory rape is referred to as a “wobbler” meaning it may be charged as a felony or a misdemeanor depending on the circumstances in the case

To be found guilty of statutory rape a prosecutor must essentially prove three things to result in a conviction.  These include:  that the defendant had sexual intercourse with another person, that the defendant and victim were not married at the time and that the alleged victim was under the age of 18 at the time of the offense.  In California all that is relevant in a statutory rape charge is the age of the defendant and victim.  Consent is irrelevant as well as force.

Related: What Is Considered Rape In California?

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Frequently Asked Questions

What If I Did Not Know The “Victim” Was Under Age 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.

When Is Felony Statutory Rape Charged?

The punishment for a felony statutory rape charge is probation with up to 1 year in the county jail or 16 months, 2 years or 3 years in jail.  If you are 21 years of age or older and the victim is under age 16, you face imprisonment for 2, 3, or 4 years in the county jail and a fine up to $10,000.

What Is The Punishment For Misdemeanor Statutory Rape?

A misdemeanor statutory rape charge is punishable by probation, up to 1 year in a county jail and/or a maximum fine of $1,000.  Differing from felony statutory rape, misdemeanor statutory rape is charged when the defendant is no more than 3 years older than the victim.

What If I Was Falsely Accused?

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

I Am a Minor, Can I Still 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.

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.2 There are several related sex offenses that do require registration including rape.

Related Issues

Rape Distinguished

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.

Civil Penalties for Statutory Rape

An individual charged with California statutory rape may also face civil penalties. These are non-criminal fines that you can be forced to pay in addition to serving time and paying criminal fines. Only adult defendants (defendants 18 and older) can be made to pay these fines.  Civil penalties depend on the age difference between the parties.

  • $2,000 if the victim is less than 2 years younger than the defendant,
  • $5,000 if the victim is at least 2 years younger than the defendant
  • $10,000 if the victim is at least 3 years younger than the defendant.
  • $25,00 if the victim was under age 16 and the defendant was over age 21.

These are maximum penalties and it is within the civil judge’s discretion to penalize the defendant within these guidelines upon a conviction for statutory rape.

How We Can Help

A conviction for statutory rape, like any sex-related offense carries with it damage to one’s reputation.  Rape can be a false accusation that the alleged victim uses out of revenge, anger, or depression.  That is why it is very important to have a competent criminal defense attorney on your side who can conduct a preliminary investigation to determine whether something about the facts or the evidence does not add up.  Please contact our office today for a free consultation: 818-351-9555.

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Footnotes

  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. []
  2. 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. []