Statutory Rape
Penal Code 261.5 – Statutory Rape in California
Sexual intercourse with a minor is a crime in California. Under California Penal Code section 261.5 PC (PC 261.5), it is illegal for anyone to have extramarital sex with a person who is under 18 years old. Unlawful sex with a minor pursuant to Penal Code Section 261.5 is often called “statutory rape”, because the focus is on the minor’s age at the time of sex, not whether any force was used or whether the minor “consented.” This contrasts with a charge of rape under California Penal Code Section 261, which does consider whether force was used or the victim consented. Learn more about California’s rape laws here [web link]
How can I be convicted of violating California’s Statutory Rape Laws?
Statutory rape under PC 261.5 is based on the notion that a person under 18 years of age cannot consent to sexual conduct because he or she lacks the judgment to do so. In a statutory rape case, a minor’s “consent” is irrelevant and the defendant’s “good” intentions are also irrelevant. Unlike rape under Penal Code Section 261 [web link], the prosecutor does not have to prove that the victim “consented” to having sex, or even that force was used to accomplish sexual intercourse. So even when said sexual intercourse appears “consensual”, the act of having sex with an underage person is a crime, simply because of that person’s age.
In order to convict a person of statutory rape, there are three elements of proof, that the prosecutor must prove beyond a reasonable doubt. You will be accused of violating Penal Code 261.5 if:
- You had sex with another person (any amount of penetration constitutes sexual intercourse).
- You and the other person were not married to each other at the time of the intercourse.
- The other person was under the age of 18 AND
- You knew, or reasonably should have known, that the other person was under the age of 18
A person reaches a certain “age” when the first minute of his or her birthday begins. This matters not just on the issue of when the victim turns 18, but it also matters greatly on issues of punishment, as we shall see below.
Example:
Laura is a 19-year-old senior in high school. She is older than the rest of her classmates.
Johnny, is a, 16-year-old, junior at her high school who she has known since childhood.
Laura and Johnny have been hanging out together after school and they eventually develop a romantic relationship.
Johnny’s mother—who has never been fond of Laura’s family—finds out they have been having sex. She knows Laura is older than Johnny and reports her to the police. Under these circumstances, Laura may be found guilty of statutory rape for having sex with Johnny.
It is worth noting that even minors can be prosecuted for statutory rape under PC 261.5. Consider the following
Example:
Bob and Gina are both 16 years old. They both have sex with each other, and they are not married to one another at the time. Because each of them has had sexual intercourse with someone under 18, each of them technically violated PC 261.5 when they had sex.
However, many prosecutors might be reluctant to bring statutory rape charges in cases where minors merely had sex with one another and there are no aggravating factors. Such cases are most likely to be prosecuted when related charges are contemplated, such as forcible rape under PC 261.
Penalties for Violating California’s Statutory Rape Laws
Statutory rape is a “wobbler” offense in California. Which means that depending on the circumstances of the event, it may be charged as either a misdemeanor or felony. Generally, if the minor is very young, or there is a big age difference between the two people, it will most likely be charged as a felony.
A violation of Penal Code 261.5 is MISDEMEANOR IF:
The defendant is no more than three years older than the minor—the penalties for this offense include:
- Informal probation
- A maximum one-year county jail sentence, and/or
- Up to one thousand (1,000) dollars in fines.
A violation of Penal Code 261.5 is either a MISDEMEANOR OR FELONY IF:
- The minor is more than three years younger than the defendant –
As a FELONY:
Incarceration of sixteen (16) months, two (2) years, or three (3) years
AS a MISDEMEANOR:
A maximum of one (1) year in county jail
- The minor is under 16 years of age and the defendant is over 21 years of age
AS a FELONY:
Incarceration for two (2), three (3), or four (4) years
As a MISDMEANOR:
A maximum of one (1) year in county jail
Civil Penalties for sexual intercourse with a minor in California:
In addition to criminal penalties, the defendant charged with statutory rape may also face civil penalties that must be paid in addition to serving time or paying criminal fines.
The maximum civil penalties will depend on the age difference between the adult and the minor:
- $2,000 if the victim is less than two years younger than the defendant
- $5,000 is the victim is at least two years younger than the defendant
- $10,000 if the victim is at least three years younger than the defendant
- $25,000 if the minor is under 16 and the defendant is over the age of 21 years.
A conviction for statutory rape does not require that the defendant register as a sex offender in California. However, related offenses do.
Defenses to Statutory Rape in California
Below are three common defenses to statutory rape in California:
There are some defenses available to a statutory rape charge in California.
Although PC 261.5 very clearly prohibits any sex with someone who is under 18, it is a defense that the defendant honestly and reasonably believed that the victim was 18 or older at the time of sexual intercourse. It is a common misconception that “you cannot say ‘I didn’t know!’” when facing statutory rape charges. While the law in some states may say as much, in California you are “not guilty” of statutory rape if you can show that you honestly and reasonably believed that the victim was over 18.
EXAMPLE:
Dave, who is 22, is at a bar where a bouncer is routinely checking the ID of anyone at the entrance. The bar has clear signage saying “under 21 not allowed.” Patty, is 17 years old and Dave does not know her previously. She enters the bar with a fake ID some time after Dave has already settled in. While at the bar, Dave sees Patty order a drink, and they start to talk. Dave is convinced that Patty must be at least 21 because she is able to enter the bar and order a drink. They have sex later that night. Dave is later charged with statutory rape under PC 261.5, but if the evidence shows the above, then it should prove that Dave was “honestly and reasonably mistaken” about Patty’s age. As a result, Dave would be found “not guilty” of statutory rape under PC 261.5.
As with all criminal cases, a statutory rape charge is often based on the statements of witnesses. These witnesses could be exaggerated or even lying. A successful defense should always explore the possibility that you have been falsely accused.
A statutory rape charge, like any criminal case, can only be proven when the relevant witnesses are found to be credible. If a witness has a certain bias against you, or a motive to falsely incriminate you, then this should be explored thoroughly during cross-examination to support a defense that you have been falsely accused. Similarly, if a witness’s account lacks any physical corroboration, or if physical evidence contradicts them entirely, then this can also support a defense that you have been falsely accused. Inconsistent witness statements, or demonstrated problems in a witness’ memory, can also support a “false accusations” defense in a statutory rape case. All of these areas should be investigated thoroughly during the defense of a statutory rape charge.
While it seems obvious, the prosecution must also prove that sexual intercourse occurred. “Sexual intercourse” under California’s statutory rape law has a very specific definition; it does not include all sexual conduct. “Sexual intercourse” under PC 261.5 means penetration of the “vagina or genitalia by the penis.” Even “slight penetration” will count, but it must be penetrative of the “vagina or genitalia.” Oral sex will not count as “sexual intercourse” under PC 261.5, but oral sex with a minor may be prosecuted under other sections of the California Penal Code.
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