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Legal Age of Sexual Consent in California

Posted by Sam Israels | Jun 27, 2024

In California, the age of consent plays a crucial role in determining when somebody is legally able to give their consent to engage in sexual activities. California's strict age of consent rule is frequently misunderstood or ignored, eventually leading to serious legal consequences.

The age of consent is the age at which someone can legally consent to sexual activity. In the state of California, it's 18 years old. This means any person under 18 cannot legally consent to have sex with someone, even if they are a willing participant.

Legal Age of Sexual Consent in California
The legal age of consent in California is 18 years old.

Notably, however, there is a "marriage exception" with the law. Simply put, Penal Code 261.5 PC says engaging in sex with a minor is considered statutory rape unless the two people are legally married.

PC 261.5 says, "(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under 18 years of age and an "adult" is a person who is 18 years of age or older."

There is no law setting a minimum age for marriage, meaning it's legal to marry a minor, but the parents must consent, and there is a court order.

Romeo and Juliet laws, which are close-in-age exemptions in many states, offer an exception to the age of consent law. Suppose two people are close in age and engaging in consensual sexual activity, such as a 16-year-old girl and an 18-year-old boy. In that case, many states will not prosecute the case.

In other words, sexual intercourse with a minor is allowed under certain circumstances due to Romeo and Juliet laws. It protects minors from prosecution based on their partner's age.

Notably, however, California is one of only a handful of states that does not have Romeo and Juliet laws. This means if a minor engages in sexual activity with another minor or someone older than them, even if it's consensual, it's still considered statutory rape.

Legal Age of Consent - Quick Facts

  • The legal age of consent in California is 18 years old.
  • A "minor" is someone under the age of 18 years.
  • At 18, the law deems someone old enough to consent to have sex.
  • It's a crime to engage in sexual activity with any person under 18.
  • If you have consensual sex with a minor, you can still face criminal charges.
  • California Penal Code 261.5 PC is the statutory rape law.
  • Most cases of statutory rape involved consent from the minor.
  • Unlawful sexual intercourse is the act of sexual intercourse with a minor.
  • Sexual intercourse is any sexual penetration, even slight, of the vagina by the penis, and ejaculation is not required.
  • It does not matter if the sex was consensual or if the minor initiated the sexual activity.
  • Many states have safe harbor provisions called "Romeo and Juliet Laws," that say two people who are close in age can engage in sexual activity.
  • California does have close-in-age exception laws.
  • California lawmakers decided that 18 is the age when young people can make informed decisions about their sexual activity.
  • While rarely prosecuted, it's still a crime if two juveniles under the age of 18 have consensual sex.

What is the Purpose of the Legal Age of Consent?

The legal age of consent is primarily designed to protect minors people from being taken advantage of by adults. Setting an age of consent acknowledges that there is a point of maturity for young people to make wise and informed decisions about sex.

Minors under 18 don't typically have enough life experience or brain development to understand the consequences of their actions.

As noted, suppose a minor gives verbal consent to sex or initiates it. In that case, the law says it is not allowed. In other words, if you have sexual intercourse with a minor, it will be considered coerced or manipulated.

The age of consent laws are designed to deter adults from pursuing underage sex partners because they are generally not mature enough to make intelligent and informed decisions about the physical and emotional risks of having sex, including sexual intercourse or oral copulation.

What Are the PC 261.5 Penalties?

If you violate the law, you can face criminal charges under PC 261.5 statutory rape, which is defined as having sexual intercourse with somebody under the age of 18.

This "wobbler" crime can be charged as a misdemeanor or a felony based on the age difference between the perpetrator and the alleged victim.

Suppose you are no more than three years older. In that case, statutory rape will always be charged as a misdemeanor that carries the following punishments:

  • Up to one year in county jail.
  • A fine of up to $1,000.
  • Summary probation

Suppose you are over three years older than the victim, or 21 or older, and the victim is under 16. In that case, statutory rape can be charged as a felony that carries the following:

  • Up to four years in state prison.
  • A fine of up to $25,000.
  • Formal felony probation.

Notably, a misdemeanor or felony PC 261.5 statutory rape conviction will not require sex offender registration under Penal Code Section 290. Still, you could also face civil penalties in the form of a lawsuit filed by the victim.

What Are the Best Defenses?

If you are accused of statutory rape by the district attorney, the issue of the age of consent is crucial. Our California criminal defense lawyers can use several strategies, as discussed below.

We can argue that you reasonably believed the minor was over the age of consent. Perhaps the minor told you they were over 18, and you had no reason to think they were lying. Simply put, we might argue you didn't willfully violate the age of consent law.

California Penal Code 261.5 PC Statutory Rape Law

This argument is the most common defense against statutory rape charges, but we need to show somehow that you believed they were an adult at the time of sexual intercourse. In other words, a good-faith belief that the alleged victim was over 18 is a valid defense to statutory rape.

Maybe the minor's clothing and dress style made them look older, which is typical. Perhaps their makeup and overall appearance made them look like an adult. Maybe you initially met them in a place where only adults can enter, such as a bar or nightclub.

Maybe we can say that the statutory rape accusations are false and that the accuser is motivated by anger or jealousy after a recent ugly relationship breakup.

Through a process known as prefiling negotiation, we might be able to negotiate with law enforcement detectives and the district attorney to persuade them not to file formal criminal charges (DA reject) before the first court date (arraignment). Contact our criminal defense law firm for more information. Cron, Israels & Stark is based in Los Angeles, CA.

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About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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