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What If These Was Consent in a Statutory Rape Case?

Posted by Ronald D. Hedding | Aug 09, 2022

We have been asked if it helps in a California Penal Code 261.5 PC statutory rape case where the alleged victim consented to have sex. You must realize that if you or a loved one is charged with statutory rape, an underage girl cannot consent to sex as the law looks at it.

What If These Was Consent in a Statutory Rape Case?

In other words, they're too young to decide, so consent is not a defense in a statutory rape case.  So, a defendant's attorney saying to the prosecutor, the victim consented to the sex, the prosecutor is going to laugh at that defense attorney and say, we don't care if they consented to the sex because they're under age, so they can't consent to the sex for purposes of the law.

That being said, a case where someone has consented and agreed to have sex is much different than a forceable rape case where the victim under 18 has not consented. 

But then, the person will probably not be charged with statutory rape.  They will be accused of full-fledged rape of a minor and face many years in prison.

By law, rape is having sexual intercourse with somebody without their consent. In California, 18 years old is the age of consent, meaning anyone under this age is not considered legally old enough to give their full consent to sexual activity.

As noted, this means that if you're accused of sexual intercourse with a minor, regardless of age, you could be charged with statutory rape under Penal Code 261.5 PC.  

The laws regarding statutory rape are confusing because it typically refers to both parties giving consent to having sex.  Our California sex crime defense lawyers will review this law in more detail below.

­What is the Legal Definition of Statutory Rape?

Under Penal Code 261.5 PC, statutory rape is legally defined as follows:

  • “an act of sexual intercourse accomplished with someone who is not the perpetrator's spouse if the person is a minor.”

The primary factor in whether statutory rape occurs is the victim's age. The determining factor as to the severity of the crime (misdemeanor or felony) is the age difference between the parties.

Legal Definition of PC 261.5 Statutory Rape

Unlike other states, California does not have a Romeo and Juliet law or a close-in-age exception to be charged.  This means you can be charged with statutory rape even if:

  • The sex was completely consensual;
  • The sex was initiated by the minor; or
  • You are also a minor.

If a teenager initiates sex with another teenager, the first teen might be charged with statutory rape, but this rarely occurs. It's a matter for the California juvenile court system to decide.

Most PC 261.5 statutory rape cases involve an adult perpetrator and a victim under 18. The prosecution does not have to prove any force was used to engage in sexual intercourse. Further, any amount of sexual penetration, even slight, is considered sexual intercourse. Ejaculation is also not required.  

Penal Code 261.5 PC statutory rape is one of the few sexual-related crimes in California that doesn't require sex offender registration under PC 290.

The related crimes include Penal Code 261 PC rape and Penal Code 288 PC lewd acts with a minor child. The penalties include:

  • If the age difference between the parties is three years or less, it's a misdemeanor offense;
  • If the age difference between the parties is more than three years, it's a wobbler that can be charged either as a misdemeanor or a felony;
  • If the defendant is 21 or older and the victim is 16 or younger, the case will likely be charged as a felony with harsher penalties.

What Are the Primary Factors for Sentencing?

The bottom line is, if you or a loved one is charged with statutory rape, there are a lot of factors, both good and bad, that the prosecutors are going to take into consideration, as will the judge when they sentence the person:

  • They're going to look at the age of the victim;
  • Is the victim almost 18 or are they very young?
  • The difference in age between the perpetrator and minor.

Obviously, if there's more than a 10-year gap in age, that's an aggravating factor.  There will be an additional allegation related to that, and the person will face more years in prison and have a much higher likelihood of registering as a sex offender for the rest of their life.

What Are the Common Legal Defenses?

So, if you or a loved one is charged with statutory rape and you're looking for the best defense, and you're looking to keep the person out of prison and do everything you can to minimize the damages, you've come to the right place, and I'll tell you why.

I've been doing this for 30 years.  I started out working for the prosecutors in East Los Angeles. Then I worked for a superior court judge in Burbank and then, in 1994, I opened my criminal defense practice, and I've been defending people charged with statutory rape since that time.

Legal Defenses for Statutory Rape in California

Perhaps you believed the victim was over 18. If the victim looked older than 18 and lied about their age, or maybe if you met them in a bar and it's reasonable to believe they were past the legal age of consent.

So, I know how to deal with these cases.  I know what the mitigating factors are.  I know how to defend the case.  Sometimes the prosecutors have problems with proof as it relates to these cases, and we can attack them and take them to a jury trial under the right circumstances. 

That's what's important.  If you're charged with any sex offense, you want to make sure that you sit down with your attorney from the beginning and decide how you will handle the case.

In other words, are you going to fight it tooth and nail, or do you do something different?  Are you going to mitigate the situation – find a resolution and figure out what it takes to keep yourself out of prison?

If you want the best, and you should be looking for the best, as it relates to statutory rape sex crimes in Los Angeles or any surrounding county, I've been doing this a long time. 

I'm at the top of my game.  Pick up the phone now and ask for a meeting with Ron Hedding. The top-rated Hedding Law Firm provides a free case consultation via telephone or uses the contact form.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

Contact Us Today

Hedding Law Firm is committed to answering your questions about state or federal sex crime issues in California and throughout the United States.

I'll privately discuss your case with you at your convenience. All consultations are free, discreet, and confidential. Contact us today to schedule an appointment.

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