Statutory Rape Law in California - Penal Code 261.5 PC
California Penal Code 261.5 PC makes it statutory rape to have sexual intercourse with anyone, not your spouse, who is under 18 years old (age of consent). It does not matter if the minor willingly participates or initiates because they are legally incapable of consenting to sex.
In California, engaging in sexual intercourse with someone under 18 who is not your spouse is a grave offense. As defined by PC 261.5 PC, this crime, commonly known as statutory rape or unlawful sex with a minor, carries significant legal consequences that cannot be overstated.
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.
Unlike many other states, California has not enacted any safe harbor provisions, commonly known as “Romeo and Juliet Laws.” These provisions allow for a close-in-age exception, permitting those in a committed relationship before one turns 18 to engage in sexual activity. Understanding these laws can provide a clearer picture of the legal implications of sexual activity with a minor in California.
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 gets pregnant and has a 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 must report that type of conduct.
Upon receiving a report, the police will investigate the matter and potentially arrest the accused for statutory rape. The case will then be handed over to the prosecutors, who will decide whether to file charges 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 the 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.
The issue of “consent” in a Penal Code 261.5 PC statutory rape is a crucial factor. Unlike charges of Penal Code 261 rape, where the lack of consent is one of the crucial factors for a prosecutor, in statutory rape cases, consent by the victim is not a defense. Understanding the legal implications of 'consent' in these cases is vital to staying informed and aware.
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.
What is Unlawful Sexual Contact?
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 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?
It's not illegal to date somebody, but as soon as some 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 will issue a protective order, so you must avoid 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 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?
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. It's important to note that this is a separate law from PC 261.5, which deals specifically with statutory rape.
What Are the PC 261.5 Penalties?
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,” a term used in California law to describe crimes that can be charged as either a misdemeanor or felony, depending on the circumstances. This means that the severity of the charges can vary, and it's crucial to understand the factors that prosecutors consider when deciding how to file the case.
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.
What Are the PC 261.5 Defenses?
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.
They 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.
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 need to learn that the individual they're dealing with is under 18. Maybe they have a fake ID, look over 18, or present themselves as being over 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 the prosecutors have.
We'll look at the law and the facts and decide first whether or not you will fight the case. If you're going to fight the case, then we're going to take specific defense strategies.
We could negotiate with the prosecutor for reduced charges or a case dismissal. We could also persuade the prosecutor not to file formal criminal charges, called a “DA reject.” We could put together a mitigation package and get character letters.
I stand ready to help you. The Hedding Law Firm is located in Los Angeles, California, and you can contact us for a free case evaluation via phone or the contact form.
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