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Age of Consent in California and Its Implications

Posted by Dmitry Gorin | Jun 13, 2022

The legal age of consent in any state is when the law deems a person is old enough to consent to sex. In the State of California, the age of consent is 18.

Thus, it is a criminal act to engage in sex with anyone under 18, and any person who does so could be charged with statutory rape under California Penal Code 261.5.

Age of Consent in California
In California, the legal age of consent is 18 years old.

Readers should note that under PC 261.5, it doesn't matter if the sex was consensual or if the minor initiated the sexual activity. In other words, this statute prohibits any type of sexual activity with anyone under 18. 

Many states have passed safe harbor provisions called “Romeo and Juliet Laws.” This provision states that two people who are close to a committed relationship before one party turns 18 years old can lawfully engage in sexual activity.

However, the state of California has not enacted any such safe harbor provision. If you have sex with a person under the legal age of consent, you are exposed to criminal liability.

PC 261.5 statutory rape is “unlawful sexual intercourse is the act of sexual intercourse with a minor who is not the perpetrator's spouse. A minor is someone under the age of 18 years.”

Sexual intercourse is any sexual penetration of the vagina by the penis, no matter how slight, and ejaculation is not required. Our California criminal defense lawyers will discuss the legal implications of the age of consent more thoroughly.

Why Does the Age of Consent Exist?

The law identifies an age of consent to protect young people from being taken advantage of by adults and ensure that they have a voice in deciding when and how they want to engage in sexual activity.

Why Does the Age of Consent Exists?
Age of consent laws exist to protect minors from adults who are seeking to take advantage of them.

By setting an age of consent, the law acknowledges that there is a point of maturity before which young people cannot make informed decisions about sex. Minors may not have the life experience or brain development to understand the implications of their actions.

As such, even if an underage person verbally consents to sex or even initiates the act, the law does not recognize them as being able to consent. Thus, any intercourse with someone under 18 is considered forcible or manipulated.

Since young people mature at different rates, there is some debate about where the cutoff age should be for the consent period. More than half of U.S. states place the age of consent at 16.

In California, however, lawmakers have decided that 18 is the universal age by which all young people are considered to be able to make informed decisions about their sexual activity.

Age of consent laws deters adults from pursuing underage sex partners. As noted, children usually are not mature enough to make intelligent and informed decisions over the physical and emotional risks of having sex.

What Happens If You Violate the Age of Consent in California?

In most cases, violating the age of consent can result in charges of statutory rape (PC 261.5), defined as having sexual intercourse with someone under age 18.

In California, statutory rape is a "wobbler" offense, meaning it can be charged either as a misdemeanor or a felony. The primary determining factor in what to charge is the difference in age between the defendant and the alleged victim.

If the defendant is no more than three years older than the alleged victim, statutory rape will always be charged as a misdemeanor, which conviction can result in:

If the defendant is more than three years older than the victim, or if the defendant is 21 years old or older and the victim is under 16, statutory rape may be charged as either a misdemeanor or a felony, which can result in:

  • up to four years in state prison, and
  • a fine of up to $25,000, depending on the difference in the relative ages,
  • formal felony probation.

If you are 21 or older and the victim is under 16 years old, the penalties will increase to two, three, or four years in the state prison.

A misdemeanor or felony Penal Code 261.5 PC statutory rape conviction will not usually require sex offender registration under Penal Code Section 290, but you could also face civil penalties.

No "Romeo and Juliet" Exception in California

As noted above, an interesting point about California's statutory rape law is that there is no "Romeo and Juliet" exception.

In many other states, it's not considered a crime for two minors to engage in sex if they are around the same age—a dynamic referred to as a "Romeo and Juliet" exception. In California, however, no such exception exists.

While it's rarely prosecuted, it's still considered statutory rape if two people under age 18 have consensual sex in California—because neither is legally at the age of consent.

What is the Marriage Exception?

There is one glaring and ironic exception to California's age of consent rule. PC 261.5 specifically identifies statutory rape as sex "with a person who is not the spouse of the perpetrator, if the person is a minor." (Emphasis ours.)

By extension, this means it's not considered statutory rape if the two people are legally married—and while California strictly observes the age of consent regarding sex, there is no minimum age for marriage!

It is perfectly legal under California law to marry a minor if the parents of the minor consent to it and there is a corresponding court order—and sex is not a crime within that marital relationship even if one or more spouses is below the age of consent.

How Can You Use the Age of Consent as a Defense?

If you're accused of statutory rape, the age of consent is as important to you as the defendant as it is for the prosecution. Common defenses include:

  • The alleged victim had reached the age of consent at the time of sex. Suppose your attorney can provide evidence or witness testimony that the alleged sex act occurred after midnight on the other party's 18th birthday date? In that case, you cannot be convicted of statutory rape because the age of consent had been reached.
  • You reasonably believed the other party was at the age of consent. For example, if the other person told you they were 18, and you had no reason to believe otherwise, you did not willfully violate the age of consent.

One of the common defenses is to make an argument you had a belief the victim was not a minor at the time of sexual intercourse. Maybe you believed they were over 18 but were wrong. A good-faith belief the alleged victim was over 18 is a defense to statutory rape.

How Can You Use the Age of Consent as a Defense?
Contact us to examine the details of your case.

We can use several essential factors to support your belief, such as statements made by the alleged victim they were over 18 years old. Also, perhaps her clothes and overall general physical appearance made him appear more aged. Maybe you initially met her at an adult-only location, such as a bar.

Perhaps we can argue that statutory rape accusations are false and made by someone out of anger or jealousy. If you or a family member has been arrested and charged with a crime involving a minor, then you should contact us to review the details.

Through prefiling negotiation with law enforcement and the prosecution, we might be able to convince them not to file formal charges against you.

Eisner Gorin LLP is located in Los Angeles County. You can contact us for an initial case review by calling (310) 328-3776 or using the contact form.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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