In California, statutory rape is charged under penal code 261.5 pc prohibiting an adult from having intercourse with a minor.[1] These allegations can result even if the purported victim “consents” to the act. Moreover, consent is not relevant since the law deems a minor incapable of consenting to a sexual act.
There is no requirement for the alleged victim to be desirous for prosecution. In other words, the District Attorney holds the power to file charges regardless of whether the minor seeks to “press charges”.
What are the Elements of Statutory Rape?
To prove a person is guilty of unlawful intercourse with a minor under California law, the prosecutor is required to prove:
- Defendant participated in an act of sexual intercourse with another;
- Penetration was accomplished by a foreign or unknown object;
- The other person was a minor at the time of the act.[2]
Punishment & Sentencing
PC 261.5 is generally a wobbler making it punishable as either a felony or misdemeanor. Punishment is largely based on the age difference between the defendant and the minor. And a conviction may carry a civil penalty amount up to $25,000.
- If the age difference between the adult and minor is not more than three (3) years, then the crime is a misdemeanor only. Consequently, a defendant faces up to one (1) year in the county jail.[3]
- If the age difference between the adult and minor is more than three (3) years, then the crime becomes a wobbler. A misdemeanor carries up to one (1) year in the county jail whereas a felony carries up to three (3) years in the county jail.[4]
- If the adult is 21 or old and the minor is under the age of 16, then the crime is a wobbler. A misdemeanor carries up to one year in the county jail whereas a felony carries up to four years in the county jail.
Defending Statutory Rape Charges – PC 261.5
As noted above, consent is not a defense to PC 261.5 even if the minor instigated the sexual act. However, the good-faith defense is when someone reasonably and actually believing that the minor was age 18 or older at the time of the act. Moreover, a reasonable person may believe the minor looks and acts older than they are. Other common defenses include false allegations, ordinarily done by the minor’s parents, or there may have been sexual activity but without any penetration.
Statutory Rape Examples
- Dan is 18 years old in his senior year of high school. He’s been dating his girlfriend who is 17 for over a year. Both begin to be intimate and have sexual intercourse. His girlfriend’s parents find out and report Dan to law enforcement. In this case, Dan would be charged with misdemeanor statutory rape because he’s an adult having sexual relations with a minor.
- Bob is 22 years old and dating a young woman who is 17. Both have been seeing one another for a few months. On prior occasions, the minor performs oral sex on Bob. Here, Bob would not be charged with statutory rape because there was no intercourse involved, thus no penetration.
Contact Us to Schedule a Free Consultation
If you’re facing statutory rape allegations, consider consulting with an experienced Orange County Criminal Defense Attorney who regularly practices in all Orange County Courts. Our office can evaluate the strength of the prosecutor’s case against you and develop a defense that applies to your case. Contact us to schedule a free case evaluation. There’s no question that early intervention could mean the difference between serving a jail sentence versus having your case rejected altogether.
Related Charges
- Battery – Penal Code 242 PC
- Rape – Penal Code 261 PC
- Sexual Battery – Penal Code 243.4 PC
- Lewd Acts with a Minor – Penal Code 288 PC
Legal References:
[1] Penal Code 261.5(a) – defined (“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.”)
[2] See CALCRIM No. 1102.
[3] Penal Code 261.5(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.”)
[4] Penal Code 261(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.”)
