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Penal Code 261.5

Statutory Rape in California

Sexual intercourse with a minor is a crime in California. Penal Code section 261.5 PC (PC 261.5) lays out the elements that define “statutory rape”. This crime takes place when an adult accomplishes sexual intercourse with a person under the age of 18.

Statutory rape (PC 261.5) and ordinary rape (PC 261) are two separate offenses.

Under California Law, ordinary rape differs in that it is an act of sexual intercourse against the will of the victim. It can occur under a variety of circumstances such as the use of physical force or threat. Learn more about California’s rape laws here

How Can I Be Convicted of

Violating California’s Statutory Rape Laws?

Statutory rape is based on the notion that a person under 18 years of age cannot consent to sexual conduct because he or she lacks the judgment to do so. In a statutory rape case, a minor’s “consent” is irrelevant and the defendant’s “good” intentions are also irrelevant. Unlike ordinary rape, the prosecutor does not have to prove that the victim “consented” to having sex, or even that force was used to accomplish sexual intercourse.  So even when said sexual intercourse appears “consensual”, the act of having sex with an underage person is a crime, simply because of that person’s age.

In order to convict a person of statutory rape, there are three elements of proof, that the prosecutor must prove beyond a reasonable doubt. You will be accused of violating Penal Code 261.5 if:

  1. You had sex with another person (any amount of penetration constitutes sexual intercourse).
  2. You and the other person were not married to each other at the time of the intercourse.
  3. The other person was under the age of 18

Example:

Laura is a 19-year-old senior in high school. She is older than the rest of her classmates.

Johnny, is a, 16-year-old, junior at her high school who she has known since childhood.

Laura and Johnny have been hanging out together after school and they eventually develop a romantic relationship.

Johnny’s mother—who has never been fond of Laura’s family—finds out they have been having sex. She knows Laura is older than Johnny and reports her to the police. Under these circumstances, Laura may be found guilty of statutory rape for having sex with Johnny.

Penalties for

Violating California’s Statutory Rape Laws

Is Statutory Rape a Misdemeanor or Felony?

Statutory rape is a “wobbler” offense in California. Which means that depending on the circumstances of the event, it may be charged as either a misdemeanor or felony. Generally, if the minor is very young, or there is a big age difference between the two people, it will most likely be charged as a felony.

A violation of Penal Code 261.5 is a MISDEMEANOR IF:

The defendant is no more than three years older than the minor—the penalties for this offense include:

  • Informal probation
  • A maximum one-year county jail sentence, and/or
  • Up to one thousand (1,000) dollars in fines.
A violation of Penal Code 261.5 is either a MISDEMEANOR OR FELONY IF:
  • The minor is more than three years younger than the defendant – the penalties include: a maximum of one year in county jail (misdemeanor) or by imprisonment (felony).
  • The minor is under 16 years of age and the defendant is over 21 years of age—the penalties include a maximum of one year in county jail (misdemeanor) or by imprisonment for two (2), three (3), or four (4) years (felony)
Civil Penalties for sexual intercourse with a minor in California:
  • In addition to criminal penalties, the defendant charged with statutory rape may also face civil penalties that must be paid in addition to serving time or paying criminal fines.The maximum civil penalties will depend on the age difference between the adult and the minor:
    • $2,000 if the victim is less than two years younger than the defendant
    • $5,000 is the victim is at least two years younger than the defendant
    • $10,000 if the victim is at least three years younger than the defendant
    • $25,000 if the minor is under 16 and the defendant is over the age of 21 years.
Do I have to register as sex offender for committing statutory rape?
  • A conviction for statutory rape does not require that the defendant register as a sex offender in California. However, related offenses do.