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California Crime of Statutory Rape - Penal Code 261.5

Posted by Alan Eisner | Jul 27, 2020

California Crime of Statutory Rape - Penal Code 261.5 PC
Penal Code 261.5 PC makes it a crime to have sex with a minor under 18 years old in California and it carries harsh penalties if convicted.

California Penal Code Section 261.5 defines the crime of statutory rape, which is also known as unlawful sex with a minor. The simplest way to understand this criminal statute is that it prohibits all sex with individuals under the age of 18. Given this broad definition, defendants and their loved ones will frequently have a number of common-sense questions.

Doesn't it affect the analysis if the defendant was also under 18 at the time? What if the parties were very close in age, maybe less than a year apart, at the time of the alleged contact? 

What if the contact was entirely consensual and the parties were in a loving, committed relationship? 

As counter-intuitive as it may be, none of these factors affect a defendant's criminal liability under California's statutory rape statute. 

Other states have enacted safe harbor provisions sometimes known as “Romeo and Juliet laws,” whereby two very close in age parties (say 18 years old and 17 years old) who have been in a committed relationship prior to one party turning 18 may still lawfully have sexual contact. California notably has not enacted any such provision.

To give readers a better understanding of PC 261.5 statutory rape, our Los Angeles criminal defense lawyers are providing an outline below.

Definition of PC 261.5 Statutory Rape

Statutory rape is defined under California Penal Code 261.5 and described as follows:

(a) Unlawful sexual intercourse is an act of sexual intercourse with a minor who is not the spouse of the perpetrator. A “minor” is a person under the age of 18 years.

In order for the prosecutor to convict you of statutory rape, they must be able to prove all the elements of the crime (CALCRIM 1072), including:

  • You had sexual intercourse with another person
  • You were not married to the victim at the time of the offense
  • The victim was under the age of 18 years old

It should be noted there is no requirement for the prosecutor to prove any type of force was used to have sexual intercourse or that the victim gave consent.

Clearly, this crucial element of the crime is the opposite of Penal Code 261 rape, where lack of consent is the crucial element of the crime. It should also be noted that any amount of penetration is considered sexual intercourse and there is no requirement of ejaculation.

It's worth noting that minors can also be charged with statutory rape, but their case will be handled in the California juvenile court system.

The related California sex crime for Penal Code 261.5 statutory rape, include:

Penalties for PC 261.5 Statutory Rape

The ages of the parties are important as a sentencing fact. Where the age gap between the parties is three years or less, a violation of Section 261.5 is always a misdemeanor and carries the following penalties:

  • Up to one year in a county jail
  • A fine up to $1,000
  • Summary probation

In other circumstances, however, statutory rape can be charged as a felony. Where the age gap exceeds three years, a felony violation of Section 261.5 may be alleged, and carries the following penalties:

  • 16 months, two years, or three years in the state prison
  • A fine up to $10,000
  • Formal probation

Those penalties increase to two, three, or four years in the state prison in cases where the defendant is 21 years or older and the alleged victim is 16 years or younger. 

Unlike most other sex crimes in California, a conviction for either a misdemeanor or felony violation of Section 261.5 does not require sex-offender registration under Penal Code Section 290.

Keep in mind that if the alleged victim is 14 years-old or younger, the much more serious crime of lewd acts on a child pursuant to Penal Code Section 288 may be alleged. This related offense carries lengthy prison time and potential lifetime registration as a sex offender.

Defenses for PC 261.5 Statutory Rape Charges

There are statutory rape cases in which the defendant reasonably believes that the other party in a sexual encounter is over 18, but is imply incorrect. 

Unlike many other sex crimes, a bona fide, good-faith, belief that the alleged victim is over 18 is a defense to statutory rape. This is because consensual sex would otherwise not be unlawful but for the defendant's good-faith mistake of fact about the alleged victim's age. 

When raising this defense, important factors will include the basis for the defendant's belief, the time the parties had known each other, how they met, etc.  The type of evidence to support this defense strategy include:

  • Statements by victim that she was over 18 years old
  • Victims attire and overall general appearance
  • Location where you met the victim, such as a bar

If the defendant's belief that the alleged victim was over 18 was objectively unreasonable, even their subjective belief to the contrary is no defense.

Another defense includes making an argument the allegation of statutory rape is false. Some California sex crime accusations are made out of anger, jealously, or revenge.

In some cases, the parents of the minor will make false accusations because they are not happy their daughter is dating an older man.

If you, or someone you know, has been accused of, has been arrested for, has been charged with, or is under investigation for statutory rape, contact our team of experienced Los Angeles criminal defense attorneys. 

Even before court, the process of prefiling intervention can substantially impact the chances of a successful outcome in your case. We have a long record of success defending clients against any type of sexual related crimes.

Eisner Gorin LLP is a top-ranked criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Our main office is next to the Van Nuys Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact us at (310) 328-3776.

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About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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