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What are the Penalties for Consensual Sex with a Minor?

What Consequences Are You Facing if You've Been Arrested for Statutory Rape Under California Penal Code 261.5 PC?

In California, it's a crime to have sexual intercourse with someone under 18 years old. Penal Code 261.5 PC is the statute used by prosecutors which has the well-known name of “statutory rape,” and is also called unlawful sex with a minor.

One of the most common arguments from people charged with statutory rape are that there was sexual consent. While that may be true, under PC 261.5, it simply doesn't matter if:

  • alleged victim gave consent to have sex, or
  • the minor primarily initiated the sexual encounter.

In other words, this sex crime statute makes it a serious crime to have any type of sexual activity with someone under the age of 18.

There are some common legitimate questions we receive from people who are facing statutory rape charges, such as:

  • what happens If I was also under 18 years old?
  • what if we were both close in age, such as less than one year apart?
  • what if I was committed to a long-term relationship with alleged victim?

In terms of facing criminal exposure under PC 261 statutory rape charges, none of these common questions have a lot of relevance.

Some states have what is known as Romeo and Juliet Laws that say two parties close in age before 18 years old are allowed to engage in sexual activity. However, California does not have any such law.

For more information, our Los Angeles sex crime attorneys will review the law below.

Definition and Related Crimes for Statutory Rape

Statutory rape is defined under California Penal Code 261.5 PC:

  • “Unlawful sexual intercourse is having sexual intercourse with a minor who is not the spouse of the perpetrator and someone under the age of 18 years.”

This statute is straightforward and the prosecutor has to prove all the elements of the crime for a conviction which are listed under CALCRIM 1072 California Criminal

What Are The Penalties for Consensual Sex with a Minor in California

Jury Instructions.

The prosecutor does not have to prove any force was used to engage in sexual intercourse. Also, as discussed, consent by victim is not a defense.

Any amount of penetration is considered sexual intercourse and ejaculation need not occur.

Minors who are charged with PC 261.5 statutory rape are processed through the California juvenile court system.

The related California crime for statutory rape include:

Sex Offender Registration Is Not Required

This is a big crime that gets charged all of the time under Penal Section 261.5 and it relates to those individuals who are engaging in sexual intercourse with somebody under the age of 18 in Los Angeles, the San Fernando Valley — anywhere in California.

As stated, the legal age for being able to have sex or being able to consent to having sex is 18 years old.

So, if you or a loved one is charged with actually having sex with somebody under the age 18, you're facing a number of ramifications, including jail time and other potential issues related to this offense.

One good consequence that doesn't come from this is, you don't typically have to register as a sex offender unless the prosecutors try to make that part of your probation.

But Penal Code Section 261.5 does not require sex registration.  That's significant because I would say 95% of sex crimes that are filed require some form of sex registration.  This is one of the few that does not.

Factors Determining Whether Statutory Rape Charges Are Filed

When you're talking about whether or not the prosecutors are actually going to file the case against you, they're going to look at a number of different factors.

  • They're going to look at your criminal record — do you have any other sex offenses?
  • Do you have any criminal record in general?
  • They're also going to look at how strong their case is.

In other words, if you meet somebody on a website that says 18 and older and the person tells you that they're 18 or 19 or 20.

Perhaps they show you some sort of fake identification and they look like they could be 18, 19 or 20 — and you end up engaging in sex with them, I'm not seeing how you get convicted on that.

Undercover police sting 

However, the police and prosecutors know the same rules that I know. So, if they're an undercover police officer, they're going to specifically say to you, hey, I'm under the age of 18, is it still okay to have sex?

If you say yes, now they've got you.  They've gotten around that issue and they know that's one of the issues that they have to grapple with, so a lot of times when they're texting back and forth with somebody, they're going to get into that issue.

Close in age 

Now, if you've got a girlfriend who is 17 and you're 18 and you engage in sexual intercourse and the parents gets involved, there's a chance that case is not going to get filed.

Perhaps something can be worked out in that case because you're close in age, and that's another big factor the prosecutors look at when deciding:

  • what to file,
  • if to file and
  • how seriously to deal with a specific case.

So, if the ages are very close, that's a much stronger argument to avoid a filing or keep somebody out of custody for example.

If the ages are far apart, and the prosecutors feel like an older person is taking advantage of a younger person, then bet your bottom dollar they're coming after that person and they're going to be looking to hammer them — put them in jail or prison for statutory rape.

Fighting Penal Code 261.5 Statutory Rape Charges

So, all of these cases are different.  I know how to evaluate a sex crime case.  I know how to evaluate a case where you're talking about unlawful sexual intercourse with somebody under the age of 18, and what's interesting about every one of these cases is that the victim consents to it.

So, you've got somebody saying, this person agreed to it.  Why am I being prosecuted?  Well, the problem is that if somebody's under the age of 18 in California, they technically cannot consent to having sex with another person.

Fighting Penal Code 261.5 Statutory Rape Charges

So, when it gets tricky is when both people are under the age of 18.

  • Who's the one that should be charged?
  • Shouldn't they both be charged?

So, the prosecutors know that that is a built-in problem, so I very rarely see cases where both people are underage being prosecuted.  Certainly, if they were prosecuted, they'd be prosecuted in the juvenile court.

Most of the cases that I see are that the woman is underage and the man is not only over the age of 18, but well over the age of 18 and that's when they come after you.

That's when you're looking at jail time/prison time, sometimes sex registration, but if it's a true Penal Code Section 261.5, at this point as I make this point in 2021, you don't have to register as a sex offender for that.

Another potential defense for statutory rape is that you had a reasonable belief the victim was not a minor at the time of sexual intercourse. Perhaps the victim stated they were over 18 or dressed in a manner that gave the appearance they were an adult.

So, if you find yourself in a situation where you're facing these types of charges and you need help, you've come to the right place.

Now, take the first step towards helping yourself and give the Hedding Law Firm a call at (213) 542-0979.

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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.

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