Statutory Rape

How Is Statutory Rape Defined in California?

Under California Penal Code Section 261.5, California's statutory rape statute, it is illegal to have sexual intercourse with a minor (under 18) regardless of any consent allegedly given. The reason is that minors are not considered to be of an age to properly understand the nature of a sexual act and its true significance/consequences.

In cases where the age difference between the two parties is great, most would agree with the premise of the statute. But it also applies, though in somewhat modified form, even when the age difference is relatively small.

Statutory rape can be charged as either a misdemeanor or felony, depending on the facts of the case and the defendant's past criminal history (if any). The seriousness and penalties of the crime vary greatly depending on the exact situation.

For example, many teenagers today are sexually active. Consensual sex between a girl one day away from turning 18 and a man who turned 18 one day earlier is technically statutory rape. Consensual sex between a 50 year old and a 15 year old is also statutory rape. Obviously, this class of crime covers a wide range of possible scenarios.

Possible Penalties

As mentioned above, statutory rape can be charged as either a misdemeanor or a felony. 

How much of an age difference existed between the two sexual participants is one of the most important factors in determining if a felony or misdemeanor will be charged. When the defendant is 21 or older and the alleged victim is under 16 (at least a 5 year difference), a felony charge with severe sentencing is likely. 

If the age difference is three years or less, statutory rape is always charged as a misdemeanor.

Thus, if the age difference is over 3 years, a felony charge is possible; while if it is over 5 years, a felony charge is likely.

As a misdemeanor, statutory rape (PC 261.5) is punishable by:

• Up to 12 months in a county jail.
• Informal probation.
• A fine as high as $1,000.

As a felony, statutory rape is punishable by:

• 16 months to 3 years of incarceration. If the perpetrator was over 21 and the victim under 16, the maximum sentence is 4 years behind bars.
• Formal probation and a year in county jail is a possible alternative to the above.
• A fine of up to $10,000.

 

Civil penalties can apply in addition to the criminal penalties listed above IF the defendant is an adult (18 or over). Civil fines apply as follows:

• When the age difference is under 2 years: $2,000.
• With an age differential of between 2 and 3 years: $5,000.
• When the age difference is 3 years or more, $10,000.
• When the victim is under 16 and the perpetrator is over 21: $25,000.

Finally, note that (unlike "ordinary" rape charged under PC 261), you do not necessarily have to register as a sex offender if convicted of statutory rape. But, if you are also convicted of, say, lewd and lascivious acts with a child (PC 288), sex offender registration would be required.

What Must the Prosecution Prove?

To gain a conviction on a charge of statutory rape (PC 261.5) in California, the prosecutor must prove the following elements of the crime beyond all reasonable doubt:

• The defendant did in fact have sexual intercourse (defined as any penetration, however slight) with a specific person.
• The two parties were not, at the time at least, married to each other. If they were, the charge would be spousal rape (PC 262).
• The younger party involved in the sexual act was a minor (under 18 years of age).

In the most common statute used against rape (PC 261), the case normally hinges on a lack of consent, but with statutory rape, the prosecution has no burden to show that consent did not exist. Consent is irrelevant.

Also unlike "ordinary" rape, there is no need to show that physical force, trickery, or threats were used to get the victim to submit to the sex.

One key to statutory rape cases is sometimes proving the age of the alleged victim. The age is officially reckoned this way under California law: one minute after midnight on your birthday, you are now "one year older."

Also note that minor and minor consensual sex also falls within the scope of California's statutory rape statute. When both parties are under 18, the older party could be charged with the crime (though, technically, you could argue both were victims of each other).

However, it is rare for consensual minor and minor sex cases to be pursued. More likely, the minor who was older may be sent to the state juvenile court to be sentenced there, if at all.

Defense Strategies

Statutory rape (PC 261.5) is a very serious charge that you cannot afford to face alone. Do not rely on busy, often unconcerned public defenders or on lawyers without adequate experience in this specific practice area.

At Leah Legal, we have successfully handle numerous statutory rape cases in the past and we understand how to build you a solid defense. We will fight tenaciously in your best interests from day one to the conclusion of your case.

Here are some of the most common defense strategies we use in statutory rape defense cases:

1. Mistake of Fact

If the defendant believed the victim to have been 18 or older, and it was "reasonable" under the circumstances for him or her to hold such a belief, it was not statutory rape. For example, if the victim told you that she/he was over 18, was dressed in a manner that suggested an older age, looked older than his/her actual age naturally, or was met up with in a bar or "adult establishment," such a belief could be deemed reasonable.

2. Mistaken Identity

If the minor or other eyewitness did not get a good look at the perpetrator or simply assumed that a person they knew the victim had been "going with" committed the crime, a misidentification could take place. 

3. False Accusation

Like other rape crimes, statutory rape is a crime that sees many false allegations. It is not uncommon for charges to be fabricated out of a sense of revenge after a break-up or because the minor's parents dislike his/her choice of a dating partner. If this is the case, rest assured that Leah Legal will know how to cross-examine witnesses and challenge false or misleading evidence to help clear your name.

The above are only a few of the more common defenses used against the charge of statutory rape. There are many more. In every instance, we never use a "cookie cutter approach," but build each defense based on the specific facts involved. But the knowledge we have gleaned from many years of hands-on experience in this field certainly assists us in assisting you in the most effective manner possible.

Related Offenses

There are a number of other serious charges that are often filed alongside or instead of statutory rape (PC 261.5). Here are two of the most common such related charges to be aware of:

1. Non-spousal Rape (PC 261)

The two major distinctions of the crime of statutory rape are that it is with a minor and that consentuality is not relevant. But the prosecution may charge that the sex was not only with a minor but also was not consensual. Then it would be a violation of both PC 261.5 (statutory rape) and PC 261 ("ordinary" rape).

The crime of rape (PC 261) is always charged as a felony and involves a lack of consent on the part of the victim and the rape being accomplished by means of physical force, fraud, or threats. 

A PC 261 conviction can get you a long term in state prison when committed against a minor. And the penalties of PC 261.5 can still apply. A rape conviction will be a strike on your criminal record under California's Three Strikes Law and will require lifelong registration as a sex offender. You would have to update with the sex offender registry every time you relocate as well or face an additional criminal charge.

When facing both rape and statutory rape charges, you are doubly in need of a good defense attorney. At Leah Legal, we can work in such a situation to get both charges dismissed, but a plea that gets the rape charge dismissed would at least prevent sex offender registration and could prevent a felony charge.

2. Lewd or Lascivious Acts with a Child (PC 288a)

This is basically California's child molestation statute. It is a felony that can get you up to 8 years in state prison, and thus, an extremely serious offense. The crime only applies when with minors 14 or under, though a few exceptions exist that would include a child who is 15.

If you are convicted of PC 288a, you will have to register for life as a sex offender. That point is simply non-negotiable. If you fail to register and keep updated with the system, you could be charged with a felony for that failure under Penal Code Section 290.

Lewd/lascivious acts with a child is not an offense that is limited to actual sexual intercourse, but it can be charged for any kind of sexual act (including sexual touching through the clothes). If the act was done for the sake of sexual arousal or oneself or of the child or for any sex-related reason, it counts as a violation of PC 288a.

And, like statutory rape, it does not matter if the child allegedly consented to the act(s). That is irrelevant here as far as a potential conviction is concerned.

Again, we at Leah Legal will fight both statutory rape and lewd or lascivious acts with a child charges (often filed together) to defeat them both. But, as PC 261.5 (statutory rape) is the lesser offense of the two and not necessarily a felony and does not require sex offender registration, we prioritize getting the PC 288a charge dropped in any plea deal that is negotiated.

Contact Us Today for Help

At Leah Legal, we possess a deep knowledge of California rape, statutory rape, and related statutes. And we also have great familiarity with local L.A. Area court processes that will impact your case. 

We appreciate the gravity of a statutory rape charge and will fight for your future as if it were our own. Our team of experienced criminal defense attorneys will know how to build you a solid defense and win the most favorable outcome possible in each situation.

To learn more or for a free consultation, call us anytime 24/7/365 at 818-484-1100.