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Statutory Rape - PC 261.5

Statutory Rape Laws in California - Penal Code 261.5


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 take an accounting of the good factors that we have on our side and the ones we will need to deal with the judge and prosecutor.

The more good factors that we can show are on our side, and the better we can counter the wrong factors, the more likely we will be successful in defense of your case.

General Information:

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.

Having a seasoned sex crime attorney who has handled many statutory rape-type cases is crucial for your success.


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

Other times, the victim will simply be too young for a jury to believe that the defendant did not know their age.

This is an issue you must discuss with your sex crime defense attorney, so you make the right decision in defense of your case.

Another issue that arises in statutory rape cases is that the age of the two parties is very close, and they met each other while they were both underages.

Then one of them turns 18, and at some point, the police are alerted to their relationship.

Under these circumstances, the prosecutors typically do not like to get involved with these cases. It will take the right circumstances for them to the prosecutor, the party who is over 18.

See Related: Unlawful Sexual Intercourse With Minor More Than Three Years Younger.


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 will need to 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 elements 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 crime charges 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 and will help you.

We can assert several defenses on your behalf, and our aggressive legal strategy and persistence help us get the favorable results we are aiming for.

What are the Penalties for Statutory Rape?

Statutory rape involves having sex with a minor, whether consensual or non-consensual, and is known as a wobbler, meaning that 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 more than three years older or over 21 and the victim under 16, then the offense may be charged as a misdemeanor or a felony.

See related: California Jury Instruction for Continuous Sexual Abuse of a Minor Under 14.

If you or someone you know is facing statutory rape charges, do not waste any time and contact our criminal defense lawyers for a free face-to-face consultation.

We will discuss all 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!

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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.