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Statutory Rape

Penal Code 261.5 PC - Statutory Rape in California

California Penal Code 261.5 PC statutory rape law makes it a crime to have sexual intercourse with someone under the age of 18 who is not your spouse. Notably, it does not matter if there was consent, they willingly participated in sexual activity, or even if they initiated sex because they are not capable under the law of consenting to sex.

The crime of statutory rape is often called “unlawful sexual intercourse with a minor,” and it should be noted that in most cases, there was consent, which is irrelevant to be charged and convicted.  Sexual intercourse means penetration of the vagina with a male penis, even slightly. This is much different than raping a minor through force, fear, or threats.   

Penal Code 261.5 PC - Statutory Rape in California
PC 261.5 PC makes it a crime to have sexual intercourse with a minor, regardless of consent.

PC 261.5 says, “(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 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 the 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.”

Some states have passed safe harbor provisions called “Romeo and Juliet Laws,” which say that when two people who are close in age and have a committed relationship can lawfully engage in sexual activity. However, California does not have any safe harbor provisions. 

What Must be Proven for a Statutory Rape Conviction? 

To convict you of statutory rape under Penal Code 261.5 PC, the prosecutor must prove all the elements of the crime beyond a reasonable doubt, including the following:

  • You had sexual intercourse with the victim,
  • You were not married to the victim when the offense occurred,
  • The victim was under the age of 18 when it occurred. 

Notably, any amount of sexual penetration of the vagina by a penis, even slight, is considered sexual intercourse, and ejaculation is not required. The use of force or fear is also not required. The prosecutor does not have to prove the victim did not consent to sexual intercourse, which makes it different from the crime of Penal Code 261 PC rape.

While two teenagers who are having consensual sex is a violation of the law, it's not typically prosecuted, but it could be in the California juvenile court system. The statute of limitations for Penal Code 261.5 PC statutory rape is three years.

What If Sexual Intercourse Did Not Occur?

Suppose the District Attorney is not able to prove beyond a reasonable doubt that there was at least some sexual penetration of the vagina by a penis supporting statutory rape charges. In that case, they could file other sex crime charges, such as the following:

What are Related Crimes?

California has a few laws that are related to Penal Code 261.5 PC statutory rape, such as the following: 

  • Penal Code 288 PC - lewd acts with a child under 14 means touching their body for purposes of sexual arousal or gratification. Most are felonies that carry up to eight years in state prison and mandatory sex offender registration. 
  • Penal Code 261 PC – rape is having non-consensual sexual intercourse with someone using threats, force, or fraud. Rape is always a felony crime and carries up to eight years in state prison, tier-three lifetime sex registration, and a “strike” under California's three-strikes law.

What are the Penalties for PC 261.5?

The penalties for a Penal Code 261.5 PC statutory rape conviction will depend on the ages of both parties. This sex crime is a wobbler that can be filed as a misdemeanor or felony that will typically depend on the following:

  • A misdemeanor if you are under three years older than the victim.
  • A wobbler if you are over three years older than the victim, and it will depend on the case details and your criminal record.
  • A felony if you are over 21 and the victim is under the age of 16.

If you are convicted of PC 261.5 as a misdemeanor, the penalties include: 

  • Up to one year in a county jail,
  • A fine of up to $1,000,
  • Summary probation.

If convicted of PC 261.5 as a felony, the penalties include the following:

  • 16 months, two years, or three years in state prison,
  • Two, three, or four years in state prison if the victim is under 16 and you are over 21.
  • A fine of up to $10,000
  • Formal probation

Sometimes, the judge could allow you to serve a split sentence where a part of your time is served through work release or house arrest. If you are granted probation, the judge will typically impose a suspended sentence, meaning you will not be required to serve jail time if you follow the terms and conditions of probation.

A felony conviction could result in the loss of your right to own a firearm. Depending on the age of the minor, PC 261.5 statutory rape could be considered a crime involving moral turpitude, meaning non-citizens could face deportation or denied entry into the United States. A statutory rape conviction does not typically require sex offender registration under Penal Code Section 290.

Civil Penalties

Further, a conviction for statutory rape could result in civil penalties if you are over the age of 18, including the following:

  • An adult who engages in unlawful sexual intercourse with a minor who is less than two years younger than you could face a penalty of $2,000.
  • $5,000 if the minor was at least two years younger,
  • $10,000 if the minor was at least three years younger,
  • $25,000 if the minor was under 16 and you were over 21.

What are the Defenses for Statutory Rape?

If you are accused of PC 261.5 statutory rape, our California sex crime defense attorneys can use different strategies based on the case details, such as the following:

  • Reasonable belief that the victim was over 18 years old.
  • No sexual intercourse.
  • False accusation.
  • Statute of limitations.

Perhaps we can argue that you had a reasonable belief that the alleged victim was an adult over 18 when sexual intercourse occurred. This is the mistake of age defense often used when a minor lies about their age, typically online through social media. Perhaps the way they dressed made them look older, or you met them in a location typically reserved for adults, such as a bar.

Perhaps we can argue there was no sexual penetration of their vagina with your penis, which can be difficult to prove. Still, the prosecutor might file other sex charges such as PC 647.6, annoying or molesting a child.

Perhaps we can argue that the allegations are false. Maybe the alleged victim was coached by an adult out of anger or revenge after a relationship ended badly. Perhaps we can impeach the accuser's credibility by reviewing their emails or texts.

Perhaps we will make a statute of limitations (SOL) argument, which is the amount of time (three years) the District Attorney must file criminal charges.  Other common defenses to PC 261.5 include a coerced confession or an illegal search and seizure by law enforcement. Contact us for more information or a free case evaluation. The Hedding Law Firm is based in Los Angeles, CA.

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