Statutory Rape Law in California - Penal Code 261.5 PC
In California, it is illegal to have sexual intercourse with anyone under 18 years old. Penal Code Section 261.5 PC is the statute used by prosecutors to charge someone with statutory rape, also called unlawful sex with a minor.
Under the law, it doesn't matter if the sex was consensual or if the minor initiated the sexual activity. PC 261.5 prohibits any type of sexual activity with anyone under the age of 18.
There are many common questions we have received from people under criminal investigation or who have been arrested for Penal Code 261.5 PC statutory rape, such as what if I was also under 18 at the time? What if the both of us were very close in age, such as less than a year apart? What if we were in a committed long-term relationship?
While these are valid questions, they don't impact a defendant's criminal liability under the statutory rape law in California.
Many states have safe harbor provisions, often called “Romeo and Juliet Laws,” that say two people close in age in a committed relationship before one turns 18 years old can lawfully engage in sexual activity. The state of California has not passed any such provision.
Our California criminal defense attorneys will look closely below to provide readers with more detailed information about the statutory rape laws.
What is the Legal Definition of PC 261.5?
California Penal Code 261.5 PC defines the sex crime of statutory rape:
- Unlawful sexual intercourse is the act of sexual intercourse with a minor under 18 who is not the perpetrator's spouse.
To be convicted of violating the statutory rape law, prosecutors must prove, beyond any reasonable doubt, all the elements of the crime listed under California Criminal Jury Instructions 1072:
- You had sexual intercourse with the victim;
- You were not married to the victim at the time of the offense.
- When intercourse occurred, the victim was legally a minor.
They don't have to prove that any force was used to engage in sexual intercourse.
Again, as stated, sexual consent from the alleged victim is not a valid defense.
This issue of the minor giving “consent” in statutory rape is much different than Penal Code 261 PC rape cases, where a lack of consent is often the primary factor.
Any amount of penetration, even slight, is legally considered sexual intercourse, and ejaculation is not required.
A minor could technically be charged with violating the statutory rape law, but in reality, it rarely occurs as the California juvenile court system handles the case.
The related California crimes for statutory rape include Penal Code 288 PC lewd or lascivious acts with a child, Penal Code 261 PC rape, Penal Code 288(b)(1) PC lewd acts with a minor by force or fear, and Penal Code 286 PC sodomy.
What Are the Legal Penalties for This Crime?
If you are convicted of Penal Code 261.5 PC, the exact ages of both parties at the time of the offense are a crucial factor at sentencing.
Statutory rape is a “wobbler” that can be charged as either a misdemeanor or felony. The factors that prosecutors use to decide on how to file the case are related to your age and the age of the victim, including:
- It's a misdemeanor if less than three years,
- It's a wobbler if more than three years,
- If you are 21 or older and the victim is under 16, it's a felony.
If convicted of misdemeanor PC 261.5, the punishments include:
- Up to one year in county jail,
- A fine of up to $1,000,
- Informal summary probation.
If convicted of PC 261.5 as a felony, then you are facing:
- 16 months, two years, or three years in state prison,
- A fine of up to $10,000,
- Formal felony probation
In situations where you are 21 or older, and the victim is under 16, the punishments will increase to two, three, or four years in state prison.
A misdemeanor or felony statutory rape conviction does not usually require California Penal Code 290 PC sex offender registration, but you could be facing civil penalties from the victim.
What Are the Legal Defenses for Statutory Rape Charges?
To challenge statutory rape charges, you first need to have a criminal defense lawyer evaluate all the details of the alleged offense. Different strategies can be used that are discussed below.
Perhaps there was a reasonable belief the victim was over 18. We might be able to make an argument that you believed they were an adult at the time of sexual intercourse. A good-faith belief they were over 18 is a valid defense, but we have to make an argument with facts, such as the following:
- Perhaps the alleged victim told you they were older,
- Perhaps the victim was dressed in a manner that made them appear older,
- Perhaps you met them in a location that required them to be adults, such as a bar or lounge.
Perhaps we can argue that the accusations are false or made by someone due to anger or jealousy.
If you or a family member are under investigation or already arrested and charged with California Penal Code 261.6 PC statutory rape, then contact our law firm to review the details and discuss legal options.
Perhaps we can negotiate with the prosecutor and law enforcement, prefiling to convince them not to file formal criminal charges before the first court date (DA reject).
Cron, Israels & Stark are based in Los Angeles, California. We provide legal representation across the state. You can contact us for a free case evaluation via phone or contact form.