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Statutory Rape - PC 261.5

Statutory Rape Laws in California - Penal Code 261.5

Statutory rape happens when someone is having sex with a person under the age of 18. The perpetrator will be prosecuted and looking at a felony on their record and potentially have to register as a sex offender. The crime of statutory rape is defined under California Penal Code 261.5.

It starts to get tricky when two parties have sex and are both under 18. This situation causes problems for prosecutors, and a lot of times, they just don't cut those cases unless there is a considerable age gap. Often, I see these cases popping up after someone gets pregnant.

They have the child, and the hospitals remove the father they would put on the birth certificate. The hospital can see that the person is under 18, so they must contact the authorities. The parents give them information about who impregnated the minor, and now the person is looking at a statutory rape charge.

Another situation I see is when parents find out that their underage children are having sex with someone over 18, and they contact the authorities.

The prosecutors ultimately decide whether or not to charge a statutory rape case. I have seen a lot of issues that would technically be statutory rape not filed because of the close ages of the two persons involved and because the sexual relationship is consensual.

Of course, the younger the victim is, the larger the age gap is, and the more likely the prosecutors will file a statutory rape case. I do not see many cases filed where both parties are under 18 unless one party is taking advantage of the other because there is a significant age gap between the two. Then, the case will be filed in juvenile court.

Having defended these cases for the past 25 years, I know exactly what is on the line and what needs to be done to avoid going to prison, having to register as a sex offender for the rest of your life, and some of the other damaging consequences that a statutory rape case can bring.

To best defend these cases, we need to account for the good factors we have on our side and the ones we will need to deal with the judge and prosecutor. The more good factors we can show are on our side, and the better we can counter the wrong factors, the more likely we will be successful in defending your case.

The factors that I am talking about relate to your likelihood of doing this again (recidivism), the differences in ages between the two individuals involved in the case, whether the crime was consensual or not, and amount of times the two parties have been engaged sexually.

I often see that the parties have both agreed to engage in sexual activities, and the younger person's parents have found out about their relationship and contacted the authorities.

Again, depending on the age differences between the parties and the victim's age, this will likely determine how the judge and prosecutor feel about the case. A seasoned sex crime attorney who has handled many statutory rape-type cases is crucial for your success.

How To Show You Are Innocent? 

One significant element that the prosecutors must prove in a statutory rape case is that you reasonably knew or should have known that the alleged victim was under 18.

Sometimes the alleged victim will lie about their age, and the defendant will have a legitimate argument that they did not know they were with someone under the age of consent. The victim will be too young for a jury to believe that the defendant did not know their age.

You must discuss this issue with your sex crime defense attorney to make the right decision in defense of your case. Another issue in statutory rape cases is that the two parties' ages are very close, and they met each other while underaged.

Then one of them turns 18, and the police are alerted to their relationship at some point. Under these circumstances, prosecutors typically dislike getting involved with these cases. It will take the right circumstances for them to the prosecutor, the party who is over 18.

What Are the Criminal Jury Instructions for Statutory Rape

In a prosecutor for statutory rape under California Penal Code 261.5 PC, the prosecutors must prove the following beyond a reasonable doubt to obtain a conviction (CALCRIM 1102): 

  • defendant was involved with an act of sexual penetration with the other person, typically sexual intercourse (kissing and touch would not be enough to meet this element);
  • victim was under the age of 18 years old at the time of the penetration; and
  • defendant knew or reasonably should have known that the victim was under 18 years old.

To be convicted of statutory rape, the prosecutors must meet all of their elements, or the jury will find the defendant not guilty. When I meet with clients, we go over all of the features and determine whether we believe the prosecutors can prove their case or not.

Once we know the strength of the other sides' evidence, we can start to make the decisions that will set the course of the defense in the case. This first meeting is crucial to the successful defense of a statutory rape case, and it is a meeting where everyone must be straightforward and honest so that we can make the right decisions right from the beginning of the case.

Sex crimes are serious charges that can lead to permanent marks on your record. If you or someone you know is being charged with a sex crime, contact our sex crime defense lawyers to get on board with you and help you.

If you are explicitly facing statutory rape charges, our sex crime lawyers can help you. We can assert several defenses on your behalf, and our aggressive legal strategy and persistence help us get the favorable results we aim for.

What are the Penalties for Statutory Rape?

Statutory rape involves having sex with a minor, whether consensual or non-consensual and is a wobbler. It can either be charged as a misdemeanor or a felony. If you are no more than three years older than the victim and are being charged with statutory rape, the offense is charged as a misdemeanor.

If you are over three years older or over 21 and the victim is under 16, the offense may be charged as a misdemeanor or a felony. If you or someone you know is facing statutory rape charges, do not waste time and contact our criminal defense lawyers for a free face-to-face consultation.

You can get a punishment of probation and no jail time for a conviction of statutory rape, or you could be sent to prison or county jail. It depends on a whole host of different factors. Your attorney will negotiate with the prosecutors before entering a guilty or no contest plea. You're going to know before then precisely what your punishment is going to be.

There can be other specific terms and conditions, like doing a sex education course or community service. They can also make you register as a sex offender during probation. The point of holding you responsible and accountable is to try to protect young people from individuals taking advantage of them when they're too young to consent.

We will discuss your options and use our skills, knowledge, and experience to get you the best possible results. The protection of your legal rights and freedom is our primary objective. Contact our sex crime defense attorneys today!

What Determines If You Get Prison Time?

So, if you're an adult and you engage in some intercourse with a minor, somebody under 18,  you can be charged with statutory rape under Penal Code Section 261.5. Then you start getting into issues of:

  • how old the minor is;
  • how old you are;
  • is there a 10-year difference between the two of you?

That can bring on an extra enhancement that could cost you years in prison.  One big thing you have to realize about statutory rape cases is that hat they're premised on the situation to which the minor has consented.

In other words, it's part of that Penal Code Section.  They know that the minor consented, but the point is that they can't lawfully consent to sex with somebody because they're under 18. That's why it's made into a crime.  That's why you're potentially facing prison time, depending on the circumstances.

Age Difference is a Crucial Factor in a PC 261.5 Statutory Rape Case

I think the most significant factors determining whether you go to prison are, first and foremost, who your attorney is.

You have to have somebody like me who's been doing this for 26 years, worked for the DA's office, worked for a Superior Court judge, and since the early 1990s, has defended people charged with statutory rape.

You've got to have that background.  You have to have that type of attorney if you want any chance of staying out of prison. The second issue is the age difference between the parties.  If you're talking about one person who is 19, the other is 17.  Under these types of cases, that's not that bad.

But if someone's 40 or 50 and the minor is 16 or 17, that's a real problem.  That's going to be lewd and lascivious conduct with a minor.  They're probably not even going to file a statutory rape case in that scenario.

So, the bottom line is that consent in these types of cases is meaningless because the premise of Penal Code Section 261.6 is that you can't consent to have sex with somebody older than you if you're under 18.

I Was Charged With Statutory Rape, But The Sex Was Consensual

If you've been charged with statutory rape, the victim was under 18. You cannot have any sexual contact with anyone under 18 in Los Angeles, California. There's no exception to this.

I see people claiming that the parents know about it. If the parents know about it, they can get charged for learning and not doing something about it. They can also have the underage person taken away from them.

There is no such thing as consent when someone is under 18. Even if they do it willingly, it is still a crime. However, if two people are very close in age, perhaps one is 18 and one is 17, often, the police are not going to get involved.

Is it Possible to be Charged With The Rape Of My Spouse?

It is possible to rape your spouse because even your spouse has to consent to sex. If you forcibly attack your spouse and are physical with them in a sexual way, and they tell you no, that could be charged as rape. Depending on what happened, there can also be a host of other charges that can be filed.

All across the United States, a wife or husband has the right to refuse to have sex with their spouse, and the other person must abide by their wishes, and if they don't, they can be charged with rape.

What Are The Penalties For Hiring A Prostitute?

If you hire a prostitute, you will be charged with soliciting prostitution. Depending on what you do and the circumstances, there are other crimes that you could also be charged with.

If you get convicted of soliciting a prostitute, usually, they make you take certain classes related to people who commit sex offenses. Potentially, they could try to make you register as a sex offender.

That is doubtful if you don't have any prior sex offenses on your record. You're exposed to jail time if they think it's severe enough, or they can make you do some community service. They usually tailor whatever the punishment is to what you did to punish you and deter you from ever doing something like that again.

Can Some Sex Offenses Be Expunged?

Certain sex offenses can be reduced from a felony to a misdemeanor. If that's the circumstance, they can also be deleted or dismissed from your record. There's no such thing as a true expungement in California. It's more of getting the matter dismissed. Also, there are now ways to get off the sex registration if you have to register as a sex offender.

Defenses For Penal Code 261.5 Statutory Rape Cases

When it comes to statutory rape, the primary defense is that one party believed that the other party was 18 years or older. Maybe it was a one-night stand, and the alleged victim looks like they're over 18 years old or even represented themselves as 18 or older.

I've had cases where the person even showed a fake I.D. to my client, and the prosecutor still filed charges. The task is whether you knew or reasonably should have known that the person you were engaging in sex with was under 18. Often, that will be judged by the surrounding circumstances and common sense.

Probably the best defense that people have in these types of cases is if the alleged victim looks like they're 18 or older and they gave you signs indicating that they were 18 or older:

  • they showed you a fake identification;
  • they told you that they were 18 or older
  • you met them on a website, for example, that you had to be 18 or older.

There's a whole slew of different factors.  The way I see the police trying to get around this is. They're going to grab both parties' phones.

Defenses for Statutory Rape Charges under California Penal Code 261.5

Usually, there's the scenario where someone's dumb enough to get a text from the other party saying they're under 18, acknowledge it, and still have sex with them.  That's one big way I see them getting people in these cases.

Also, if they get the alleged victim on their side, the police can do a pretext phone call, where the alleged victim calls you up and says, you knew I was under 18.  Why would you have sex with me?

If you don't say no, I didn't know you were under 18.  You told me you were 20, and you say I'm sorry, then that's a tacit acknowledgment of guilt.

In these statutory rape cases, you do have the chance to get probation under the right circumstances.  But, I'm telling you the issues they're looking at.  They're looking at the age gap between the victim and the perpetrator.

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