A common question is whether California has a "Romeo and Juliet" law, which says it's not always a crime to have sex with a minor. The primary purpose of this law is to have an exception for close-in-age young people to have sex without committing a crime.
Many states have Romeo and Juliet laws that generally say that a person between the ages of 14 and 17 can consent to sex with someone within three years of their age, as long as the person consenting party is at least 14 years old.
However, in the state of California, there are no Romeo and Juliet laws. This means that if you have sex with a minor under 18, you can be charged with Penal Code 261.5 PC statutory rape, even if you are close in age or also a minor.
Minors in California can legally have sex if they are married, but they cannot legally marry without a court order.
The legal age of consent in California is 18 years, which means this is the age when someone can legally consent to sexual intercourse. Thus, simply put, it's illegal for an 18-year-old male to have consensual sex with a 17-year-old female even though they are close in age.
Likewise, it's also illegal for a 16-year-old boy to have consensual sex with a 15-year-old girl, even though both of them are minors, but this is rarely prosecuted and would be handled in the juvenile court system.
PC 261.6 statutory rape (unlawful sexual intercourse) in California occurs when a someone engages in consensual sex with a minor. These sex crime cases are typically charged by the district attorney when a male adult over 18 has consensual sex with a female minor under the age of 18.
If the age difference between the alleged perpetrator and the victim is three years or less, unlawful sexual intercourse is a misdemeanor. Still, it could become a wobbler that can be charged as a felony or a misdemeanor.
Romeo and Juliet - Quick Facts
- 30 states have passed "Romeo and Juliet" laws designed to prevent the prosecution of close in age young couples engaged in consensual sex.
- California is one of 20 states with no Romeo and Juliet law.
- The absence of a Romeo and Juliet law in California puts young people at risk of significant legal consequences if they engage in sexual activities.
- Prosecution of teenagers having sexual intercourse is rarely prosecuted.
- A primary purpose of statutory rape laws is to prevent teen pregnancies.
- Statutory rape is codified in California Penal Code 261.5 PC. It makes it a crime to have consensual sexual intercourse with someone under 18.
- The legal age of consent in California is 18 years of age.
- While technically illegal, it's rare for the district attorney to file criminal charges against close-in-age minors for having consensual sex.
- Statutory rape charges can be prosecuted in juvenile court.
- Named after Shakespeare's ill-fated teen couple, Romeo and Juliet laws give legal protection to teenagers engaging in consensual sex with peers close to their age.
- One rationale behind this law is to differentiate between exploitative sexual relationships and those occurring between peers in a close age bracket.
- This law recognizes the nuances of teenage relationships and aims to avoid unjustly penalizing what can be considered normal adolescent behavior.
- One purpose of this law is to decriminalize teenage sex by making a "close-in-age" exemption, which allows young adults to have consensual sex.
- In California, there is a stricter approach to the age of sexual consent and relations involving minors. The age of consent is set at 18 years old.
- Any sexual intercourse involving someone under 18 is considered statutory rape, regardless of the minor's consent.
- If both participants are teenagers, any act of sexual intercourse is illegal if either party is under 18, regardless of mutual consent.
- PC 261.5 makes an explicit exception for teenagers who are legally married.
- Minors under 18 can only legally marry if they have the consent of at least one parent or guardian and receive a court order from the family court permitting them to marry.
What is Statutory Rape in California?
Penal Code 261.5 PC statutory rape, called "unlawful sexual intercourse," occurs when somebody engages in consensual sex with a minor. If convicted, the punishments include the following:
- If the age difference is three years or less, unlawful sexual intercourse is a misdemeanor carrying six months in county jail and a fine of up to $1,000.
- If the minor is under 18 and over three years younger than the perpetrator, it's a wobbler. A misdemeanor carries up to one year in jail, and a felony carries 16 months, two or three years in jail.
- If the defendant is at least 21 and the minor is under 16, it's also a wobbler. A felony conviction carries two, three, or four years in jail.
Notably, defendants convicted of unlawful sexual intercourse could face monetary civil penalties based on the age difference. For instance, if the minor is less than two years younger, the civil fine is $2,000. If a defendant is at least 21 and the minor is under 16, then the civil fine is $25,000.
Charges of statutory rape in California are generally considered misdemeanors when the age difference between the consenting parties is less than three years. However, if the age difference is greater, the charge can be elevated to a felony.
What Does Penal Code 261.5 PC Say?
The full text of 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.
(b) A person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator is guilty of a misdemeanor.
(c) A person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d) A person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over 21 years of age who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against a person who violates this section with the proceeds of this fine to be used by Section 1463.23. The court shall, however, consider the defendant's ability to pay, and a defendant shall not be denied probation because of their inability to pay the fine permitted under this subdivision.
(f) A person convicted of violating subdivision (d) who is granted probation shall not complete their community service at a school or location where children congregate."
What Are the Common Defenses to Statutory Rape?
A California defense attorney can use several defense strategies to counter PC 261.5 statutory rape charges, as discussed below.
Perhaps we can argue the mistake of age. Maybe you reasonably believed the minor was 18 years old during the encounter. If the minor is near enough to consent that a reasonable person could have made a mistake, and the minor misled you about their age, this defense can hold up in court.
Perhaps there is additional evidence of the deception, such as a fake ID or proof that the minor was hanging out in an adult location, like a bar.
Perhaps we can argue there was no sexual intercourse, which is defined as sexual penetration involving the genitalia, no matter how slight. Maybe we can say that even if sexual acts occurred, there was no penetration and, therefore, no act of statutory rape.
Perhaps we can argue you are the victim of a false accusation. Sometimes, a minor may falsely accuse someone of statutory rape as a form of revenge or to avoid getting into trouble with their parents. Contact our law firm for more information. Cron, Israels & Stark has offices in Los Angeles, CA.
Related Content:
