Statutory Rape Law in California - Penal Code 261.5 PC
In California, it's a crime to have sexual intercourse with someone under 18 who is not your spouse. Penal Code 261.5 PC defines this crime of statutory rape, which is also called unlawful sex with a minor.
Notably, it does not matter if the sex was consensual or if the minor initiated the sexual activity because minors can't legally give sexual consent. Simply put, this statute prohibits any sexual activity with a minor, but not all acts are prosecuted the same.
Many states have passed safe harbor provisions known as “Romeo and Juliet Laws.” This is the common close-in-age exception, or those who have a committed relationship before one turns 18 years old can lawfully engage in sexual activity. Notably, California has not enacted any such safe harbor provision.
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 the age of 18 years and an “adult” is a person who is at least 18 years of age.”
Another area where I see statutory rape coming up is if somebody actually gets pregnant and has the child. At the birth the hospital is asking for the father's name. They realize that the patient is under the age of 18. They're then going to call the police. They have a duty to report that type of conduct..
The police are going to come out and if they're able to confirm a name and information on a person, they're going to follow up and investigate that and potentially arrest that person for statutory rape. They'll give that case to the prosecutors and let the prosecutors decide whether they're going to file it or not.
The laws regarding statutory rape are both complex and convoluted because they usually refer to both parties giving consent to have sexual intercourse. Let's review this law in more detail below.
What Does the Law Say?
To be convicted of violating Penal Code 261.5 PC statutory rape, prosecutors must prove, beyond any reasonable doubt, several factors that are called the “elements of the crime.” These are listed in California Criminal Jury Instructions 1072 and include the following:
- You had sexual intercourse with the victim;
- You and the victim were not married at the time;
- When intercourse occurred, the victim was under 18.
Notably, the prosecutor is not required to prove that force was used to engage in sexual intercourse. As noted, consent by victim is not a defense.
Any amount of penetration, even slight, is considered sexual intercourse, and it does not have to be proven that ejaculation occurred.
This issue of “consent” in a Penal Code 261.5 PC statutory rape is in stark contrast to charges of Penal Code 261 rape, where the lack of consent is one of the crucial factors for a prosecutor.
If a teenager has sexual intercourse with another teenager, they could technically be charged with statutory rape, but it rarely happens. So instead, it could be a case handled through the California juvenile court system. The statute of limitations for PC 261.5 violations is one year for a misdemeanor case and three years for felony cases.
Unlawful Sexual Contact With Anyone Under 18 Years Old
More and more, I see questions coming up asking about sex with minor cases. Surprisingly, a lot of people don't realize the ramifications that can occur if you engage in some sort of sexual contact with somebody under the age of eighteen — and that is the age of consent in California.
That would also make it the age of consent in Los Angeles. So, when I see these questions, such as, I have a boyfriend or a girlfriend. I'm in my 20s, and the other party is underage, is it okay to have a boyfriend and girlfriend?
Obviously, it's not illegal to date somebody, but as soon as some sort of sexual contact is involved, now you've put yourself in a position where you can be prosecuted. Maybe the other party is consenting, but their parents or a family member finds out, or a stranger sees you, and you get arrested and prosecuted.
Now, you are facing sex registration. They're going to issue a protective order, so you have to stay away from that other person. You're facing jail or prison time. There are all sorts of ramifications. Sex with a minor is probably one of the worst charges you can be hit with for a variety of reasons.
Mainly though, because it's so stigmatized in society, and the legislature has really stepped up and enacted severe penalties for sexual contact with a minor.
They start to consider the age of the minor, what the acts are, what the circumstances are, and how many times it happened — there are a whole bunch of different factors and different allegations that the prosecutors can use to prosecute a sex crime case in Los Angeles.
What Are the Related Crimes for PC 261.5?
Some California statutes are related to Penal Code 261.5 PC statutory rape, such as the following:
- Penal Code 288 PC lewd acts with a minor: This law prohibits touching the genitals, buttocks, or breasts of someone under 14 for sexual gratification;
- Penal Code 261 PC rape: This law usually involves forced sexual intercourse without the victim's consent, regardless of age.
What Are the Penalties for PC 261.5?
If convicted of Penal Code 261.5 PC statutory rape, the ages of both parties are an essential factor for sentencing. PC 261.5 is a “wobbler” that can be charged as either a misdemeanor or felony crime.
The circumstances prosecutors use to decide how to file the case include:
- If you are less than three years older, it's a misdemeanor;
- If you are over three years older, it's a “wobbler;”
- If you are 21 or older and the victim is under 16, it's a felony.
A misdemeanor PC 261.5 statutory rape carries the following penalties:
- 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, the penalties include the following:
- 16 months, two years, or three years in state prison;
- A fine of up to $10,000;
- Formal felony probation.
If you are 21 or older and the victim is under 16, the penalties increase to two, three, or four years in state prison. Penal Code 261.5 PC statutory rape conviction does not usually require sex offender registration under Penal Code 290 PC.
Notably, a conviction for statutory rape means you could also face civil penalties. In addition, fines may be levied based on the age difference from $2000 to $25,000.
For example, the civil penalty is $10,000 if the victim is at least three years younger than the defendant and $25,000 if the minor is under 16 years old and the defendant is over 21.
Don't Make Any Statements – Remain Silent
So, if you have one of these cases, you shouldn't talk to anybody about it. A lot of time, they're doing what's called pre-text phone calls where they have the alleged victim or their family or somebody connected with them call you and start asking you questions about it, and on the other end of the line is the police, tape recording it and getting your answers documented so they can use that later to prosecute you.
DNA Evidence in sex crime cases is an effective tool for law enforcement and prosecutors to show a defendant committed a crime.
They also come and arrest you and start asking you questions about it. They put you in a room, and they start threatening you. They want you to say something that will incriminate yourself, so you cannot defend yourself because in a sex crime case, anybody admitting — especially sex with a minor case — that they actually had sexual contact with a minor.
That's going to be the most powerful evidence that the prosecutors are going to have to prove the case because a potential jury is going to say, wait a minute, this person admitted that they did it, and I don't care what excuse they come up with for admitting it.
Nobody admits they had sex with a minor if they didn't. You'll be up against that if you start talking and answering questions. Even if you are going to deny that you did anything, the police can mischaracterize what you said.
It can be taken out of context or they can get some other information that you answer a question one way, and they've got information that shows you're not telling the truth. That then begins to attack and erode your credibility as a potential witness as a defendant in the future.
What Are the Defenses for PC 261.5?
Our California criminal defense lawyers can use several strategies against PC 261.5 statutory rape charges, such as the following:
- You believed the victim was over 18;
- False allegation.
Perhaps we can argue that you reasonably believed the victim was not a minor during sexual intercourse. Maybe you thought they were over 18, but you were simply incorrect. A good-faith belief that the alleged victim is over 18 is a defense to statutory rape.
Sometimes people don't know that the individual they're dealing with is under 18. Maybe they have a fake ID. Perhaps they look over 18. Maybe they presented themselves as being over the age of 18.
Perhaps we can argue that you didn't have sex with that person. How are they going to prove that you had sex? They're going to have some DNA, or get you to admit that you had sex with the person, or the person could say that you had sex with them, and a jury could believe that they're telling the truth.
Perhaps we can argue that you are the victim of a false allegation. For example, maybe someone wanted to accuse you of a crime out of spite or vengeance, or you spurned a minor's advances, and they responded in anger by falsely accusing you.
We need to have you come and sit down; this is where I separate myself from other criminal defense attorneys. We'll go over all the details, and you and I will talk about the best defense strategy for you, your case, and the facts and details that the prosecutors have.
We'll look at the law; we'll look at the facts and decide first whether or not you're going to fight the case. If you're going to fight the case, then we're going to take specific defense strategies.
Perhaps we can negotiate with the prosecutor for reduced charges or a case dismissal. Maybe we can persuade the prosecutor not to file formal criminal charges, called a “DA reject.” We can put together a mitigation package and get character letters.
I stand at the ready to help you. You can contact us for a free case evaluation via phone or the contact form. The Hedding Law Firm is located in Los Angeles, California.