CALCRIM 1071 jury instructions control this. It describes what the elements are to convict a person for this crime. It's typically prosecuted under California Penal Code Section 261.5(a) through (c).
The bottom line is, one of the most effective defenses to this is that the defendant has to reasonably know that the person is under the age of 18. So, if they have sex with somebody and know or believe that the person is 18 or older, it could be a complete defense to the crime.
The elements are as follows: the judge in one of these prosecutions in Los Angeles will read the jury, the defendant is charged, and then they'll put what Count it is with unlawful sexual intercourse with a minor who was more than three years younger than the defendant in violation of Penal Code Section 261.5(c).
To prove this charge, the prosecution has to prove, number one – the defendant had sexual intercourse with another person. You'll notice there's nothing about consent in there. In other words, these cases are typically prosecuted when the other party consents or agrees to have sex with the defendant. So, that's not a requirement for Penal Code Section 261.5. See related: Statutory Rape.
The second element is that the defendant and the other person were not married at the time of the intercourse. So, this particular element could be blocked or defended if the defendant can prove that they were married to the other party.
The third element is at the time of the intercourse; the other person was under 18 and more than three years younger than the defendant. So, this would justify a felony filing. If the person was at least three years younger than the defendant, was under 18 years old, then the prosecutors could file this case.
Consent Is Not A Defense
As far as the term “sexual intercourse” goes, for purposes of this jury instruction and the law, it means any penetration no matter how slight of the vaginal or genitalia by the penis. Ejaculation in this situation is not required.
And it is not a defense that the other person may have consented to the intercourse as I indicated earlier, so most of the time when you see Penal Code Section 261.5 charged in Los Angeles, the alleged victim in the case did consent, did agree to it.
Often, the person's parents find out They alert the police to it or what I've also seen is that defendant gets that person pregnant. Then, when the individual gives birth to the child at the hospital, they provide the father's name, which causes the hospital authorities to contact the police.
The police come in, and ultimately the defendant is arrested because obviously, they've got the proof that there were sexual relations between the two.
Prosecutors and The Burden of Proof
The defendant is not guilty of this crime if they reasonably believe that the other person was 18 or older. The prosecutors have the burden of proof, and they have to prove beyond a reasonable doubt the defendant did not reasonably and believe that the other person was at least 18 years old.
If the prosecutors have not met this burden, you must find the defendant not guilty of the crime. So, this shows you that this is an effective defense where the defendant in a criminal case in Los Angeles was charged with Penal Code Section 261.5, which is statutory rape, must be shown to know that the other party is under the age of 18.
So, what I've seen in some of the cases I've done is that the girl involved gives a fake I.D. and tells the defendant that she's at least 18, looks at least 18 years or older, is driving a car, has a lot of other things — buying alcohol — a lot of different things that are indicative of somebody who's at least 18 years old.
In the case of buying alcohol, you have to be 21, but I've had individuals telling my client they're at least 21 or older and then believing that.
So, this could be a complete defense to the crime. Of course, the prosecutors and police know this, so how they try to get around it is they're going to find evidence on cell phones and computers that show the defendant knew the person was under the age of 18. Of course, they're going to ask the alleged victim whether they told the defendant they were younger than 18. They're going to ask the defendant.
Consult with Our Sex Crime Defense Attorneys
So, the bottom line is, before you speak to the police about anything related to this type of offense, you want to get to an attorney immediately. Say nothing to the police and let the attorney guide you through and walk you through prosecution in Los Angeles for Penal Code Section 261.5, unlawful sex with a minor — statutory rape.
