Statutory Rape Laws In California

In California it is illegal for an adult (age 18 or older) to have sex with a minor (under age 18) regardless of whether the sex was consensual under penal code 261.5¹

Elements Of Penal Code 261.5

Penal Code 261.5 is a “wobbler” offense, so that the prosecutor has discretion to charge the defendant with a misdemeanor or felony.

There are 3 elements to the crime of statutory rape:

• You had sexual intercourse² with another person (any degree of penetration constitutes intercourse)³
• The parties involved were not married to each other
• The victim was under the age of 18⁴

The entire concept of statutory rape is centered around the age of the victim. The age of the defendant is relevant to whether the offense is charged as a misdemeanor or a felony.

The exception to the law is if the victim who is under the age of 18 is married to the other party with whom he or she is having sex.

Legal Defenses To Statutory Rape

There are defenses to statutory rape:

Honest Belief The Minor Was 18

If you had a reasonable and honest belief that the minor was at least 18, you could be acquitted of statutory rape⁵.

This is akin to or similar to the defense of “mistake of fact.”

Factors that a prosecutor, jury or judge acting as the trier-of-fact will look at include:

• Circumstances of the relationship–did the parties just meet and where? Was it in a bar or party where there were only adults present?
• Did the minor victim say he/she was 18 or over or even display a photo ID that looked genuine?
• The appearance of the minor. Does the victim appear and act like an adult?
• Did another person confirm that the victim was 18?

Mistake of fact is not available to a defendant who is over the age of 21 and the minor is under the age of 16⁶.

False Accusations

A minor victim, like an adult, may have felt slighted by you or is seeking to punish you for rejecting him/her by falsely accusing you of having had sex. However, if there are no available semen samples to match your DNA, then other evidence may be needed to prove that you did engage in sexual intercourse.

Other evidence should be corroborative such as witnesses having seen you leave a party with the minor, having observed you kissing and fondling each other or making sexual comments. There are cases where a defendant was convicted based solely on the testimony of the minor victim.

If you are arrested or accused of any crime, you have the right to remain silent and to ask to speak to an attorney. Once this is conveyed to the police or prosecutor, all questioning must cease. Be sure to call an attorney immediately if this happens to you.

Consent Is Not A Defense

Consent by the minor party that is under the age of 16 to sexual intercouse is not a defense to penal code 261.5⁷. Which is different from rape under penal code 261 where consent is a defense.

Criminal Penalties

As indicated above, California statutory rape is a “wobbler” so that it can be charged as either a misdemeanor or a felony. The factors determining how the offense will be charged are:

• If the defendant is no more than 3 years older than the minor, then he/she will be charged with a misdemeanor⁸.
• Should the defendant be more than 3 years older, the prosecution can elect to charge the defendant with either a felony or misdemeanor⁹.
• If the defendant is over the age of 21 and the minor under the age of 16, the prosecution can charge the offense as misdemeanor or felony, though if a felony is charged the penalties are enhanced¹⁰.

Penalties	Misdemeanor	Felony	Felony (Defendant over 21, Victim under 16)
Fine	Up to $,1000 + Penalty Assessments	Up to 10,000	Additional Civil Penalties Outlined Below
Probation	Summary or Informal Probation	Summary or Informal Probation	Summary or Informal Probation
County Jail	Up to 1 year	Up to 1 year County, 16 months 2 or 3 years	2, 3 or 4 years

Related Articles You May Be Interested In:

• Understanding The Probation Process In California
• How The Parole Process Works
• Information On California Jails

Civil Penalties

Adult defendants convicted of statutory rape may also be required to pay a civil penalty in addition to any criminal fines. How much you will pay depends on the age disparity between you and the victim.

Less Than 2 Years Younger	At Least 2 Years Younger	At Least 3 years younger	Defendant over 21, Victim under 16)
Max Of $2,00011	Max of $5,00012	Max of $10,00013	Max of $25,00014

FAQ

Difference Between Rape & Statutory Rape

Statutory rape and the crime of rape are two separate offenses.  Under California law, rape is an act of sexual intercourse against the will of the victim that can occur under a variety of circumstances, including when:

• the victim is prevented from resisting due to alcohol or drug intoxication.
• the assailant uses physical force or the threat of force to overpower and control the victim.
• the victim fears that she or he or another will be injured if the victim does not submit.
•  the assailant uses duress, such as a direct or implied threat of hardship or retribution, to coerce the victim.
•  the assailant uses force, fear, or threats to accomplish sexual intercourse against the will of the spouse.

The crime of rape takes into consideration consent of the victim, whereas consent is irrelevant for statutory rape.  Rape is a felony, which is punishable by 8 years in state prison, and counts as a “strike” under California’s 3 strikes law.[3]   A rape conviction requires registration as a sex offender for the offender’s lifetime.

Related Articles You May Be Interested In:

• What Is Considered Rape In California?
• Sexual Battery Under California Law

1. California Penal Code 261.5 (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age. (b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. (e) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in thefollowing amounts: (A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000). (B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000). (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000). (D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000). (2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature. (3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. [↩]
2. Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required. CALCRIM 1070 [↩]
3. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d 224, 233–23 [182 Cal.Rptr. 406], disapproved on other grounds by People v. Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165] [↩]
4. A defendant may be convicted of unlawful sexual intercourse even if the minor victim is married or was previously married to another person. (People v. Courtney (1960) 180 Cal.App.2d 61, 62 [4 Cal.Rptr. 274] [construing former statute]; People v. Caldwell (1967) 255 Cal.App.2d 229, 230–231 [63 Cal.Rptr. 63]. [↩]
5. A Good Faith Belief in The Victim’s Age. People v. Zeihm (1974) 40 Cal.App.3d 1085, 1089 [115 Cal.Rptr. 528] [↩]
6. “A defendant is not entitled to a mistake of fact instruction if he claims that he believed that the complaining witness was over 16. His belief would still constitute the mens rea of intending to have sex with a minor.” (People v. Scott (2000) 83 Cal.App.4th 784, 800–801 [100 Cal.Rptr.2d 70].) However, if he claims that he believed that the complaining witness was over 18 years old, he is entitled to the mistake of fact instruction. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr. 361, 393 P.2d 673]. [↩]
7. People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502]. [↩]
8. California Pena Code 261.5(b) – Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. [↩]
9. California Penal Code 261.5(c) – Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. [↩]
10. California Penal Code 261.5(d) – Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. [↩]
11. California Penal Code 261.5(A)- An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000). [↩]
12. California Penal Code 261.5(B) – An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000). [↩]
13. California Penal Code 261.5(C) – An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000). [↩]
14. California Penal Code 261.5(D) – An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000 [↩]
15. California Penal Code 290 (a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses. [↩]