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Does California Have Romeo and Juliet Laws?

Posted by Dmitry Gorin | May 06, 2024

The intricacies of consent laws have garnered significant attention across the United States in modern times, particularly regarding the allowances and restrictions they impose on teenage relationships

Many states have adopted “Romeo and Juliet” laws, statutes designed to prevent the prosecution of young couples engaged in consensual sexual activities when their ages fall within a close range

Does California Have Romeo and Juliet Laws?
California does not have Romeo and Juliet laws, meaning it's always PC 261.5 statutory rape.

However, California is one of 20 states that has no such law in place—meaning that while it is rare for the state to prosecute instances of teen sex, it is still considered statutory rape, even if both participants are minors. A primary purpose of statutory rape laws is to prevent teen pregnancies.

Simply put, there are no Romeo and Juliet laws in California. Thus, it is always statutory rape defined under Penal Code 261.5 PC to have consensual sexual intercourse with someone under 18, even when you are close in age or a minor yourself. 

Minors are allowed to have sex if they are married legally, but they cannot legally marry in California without a court order. The legal age of consent in California is 18 years of age, meaning this is when someone can legally consent to sexual intercourse. 

This means it's illegal for an 18-year-old boy to engage in sexual intercourse with a 17-year-old girl, even though they are very close in age. Likewise, it's illegal for a 16-year-old to have sex with a 15-year-old, even though they are both minors.

However, as noted, while technically illegal, it's pretty rare for the district attorney to file criminal charges against close-in-age minors for having consensual sex with each other. Statutory rape charges could be prosecuted in juvenile court.

What Are Romeo and Juliet Laws?

Named after Shakespeare's ill-fated teen couple, Romeo and Juliet laws provide legal protection to teenagers who engage in consensual sex with peers close to their age, exempting them from severe statutory rape charges that would otherwise apply if one party is below the age of consent. 

The rationale behind these statutes is to differentiate between exploitative sexual relationships and those that occur between peers in a close age bracket

Many states have adopted these laws, recognizing the nuances of teenage relationships and aiming to avoid unjustly penalizing what can be considered normal adolescent behavior.

Romeo and Juliet laws essentially say it's not always a crime to have sex with a minor. The purpose is to decriminalize teenage sex by making a “close-in-age” exemption, which allows young adults to have consensual sex. 

What is California's Legal Stance?

California maintains a more stringent approach when it comes to the age of consent and sexual relations involving minors. 

In California, the age of consent is firmly set at 18 years old. Although consenting teens are rarely prosecuted for their sexual relationships, under California Penal Code 261.5, any sexual intercourse involving an individual under 18 is considered statutory rape, irrespective of the minor's consent or the minor's age relative to their sexual partner.

This means that even if both participants are teenagers, any act of sexual intercourse is technically illegal if either party is under 18. This holds true regardless of their relationship's nature, their ages' closeness, or mutual consent.

What are the Legal Implications?

The absence of a Romeo and Juliet law in California puts young individuals at risk of significant legal consequences if they engage in sexual activities before reaching the age of consent.

California Penal Code 261.5 PC statutory rape

Even seemingly innocuous teenage romances could result in statutory rape charges if they involve sexual intercourse and if one or both parties are under 18. 

Charges of statutory rape in California are generally treated as misdemeanors when the age difference between the consenting parties is less than three years.

However, if the age difference is greater, the charge can be escalated to a felony. If both parties are under 18, the charges would be adjudicated through the juvenile court system.

Such charges can have profound implications on a young individual's life, including potential jail time, probation, and a criminal record. It's essential for teens and their guardians to understand these risks and to seek competent legal guidance if the relationship results in criminal charges.

What is Statutory Rape in California?

Penal Code 261.5 PC statutory rape (unlawful sexual intercourse) occurs when someone engages in consensual sex with a minor and is typically charged when the perpetrator is an adult over 18 having sex with someone under 18 years old. The penalties include the following:

  • If the age difference between the defendant and the alleged victim is three years or less, unlawful sexual intercourse is a misdemeanor that carries up to six months in county jail and a fine of up to $1,000.
  • If the minor is under 18 and over three years younger than the defendant, it's a wobbler. A misdemeanor carries up to one year in jail, and a felony carries 16 months, two, or three years in jail. 
  • It's also a wobbler if the defendant is at least 21 and the minor is under 16. A felony carries two, three, or four years in jail.

Also, defendants convicted of unlawful sexual intercourse can face monetary civil penalties based on the age difference. For example, if the minor is less than two years younger, the civil fine is $2,000. If the defendant is at least 21 and the minor is under 16, the civil fine is $25,000.

What If the Minors Are Married?

PC 261.5 makes a clear exception for teenagers who are legally married. In the context of a legal marriage where at least one of the spouses is a minor, statutory rape charges would not apply. However, children under 18 can only legally marry under the following conditions:

  • They have the consent of at least one parent or guardian, and
  • They receive a court order from the family court permitting them to marry.

What are the Common Defenses?

Since the legal concept behind statutory rape is that minors under 18 are not legally able to consent, one cannot use mutual consent as a defense against charges of statutory rape. However, an experienced California defense attorney can still implement several defense strategies to counter the charges. Common defenses include:

  • Mistake of Age. The attorney may argue that the defendant reasonably believed the minor was 18 years old at the time of the encounter. If the minor in question is obviously underage, the mistake of age defense will not work. However, if the minor is near enough to the age of consent that a reasonable person could have made a mistake—and if the minor clearly misled the defendant about their age—this defense can hold up in court. Usually, the attorney must present additional evidence of the deception, such as a fake ID or evidence that the minor was hanging out in an adult location, like a bar.
  • No Sexual Intercourse. Statutory rape is defined as sexual intercourse. Under the law, sexual intercourse is defined as sexual penetration involving the genitalia, no matter how slight. The attorney may argue that even if sexual acts occurred, there was no penetration and, therefore, no act of statutory rape.
  • False Accusation. In some cases, a minor may falsely accuse someone of statutory rape as a form of revenge or to avoid getting into trouble with their parents. An experienced attorney can help gather evidence and testimony to discredit the accuser's claims.

Contact our law firm for more information. Eisner Gorin LLP has offices in Los Angeles, CA.

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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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