Sex should be consensual. Without consent, any sexual intercourse with another person is non-consensual. This could result in rape charges. However, when it comes to contact with children, consent is not required to secure a conviction. The law deems children incapable of fully comprehending the nature and consequences of sexual acts. Thus, they are incapable of permitting sexual engagement. Therefore, any sexual intercourse with minors results in criminal charges of statutory rape. Here is a look at statutory rape under the law and the consequences you could face if convicted.   

What is Statutory Rape Per California Law

Penal Code 261.5 makes it illegal to engage in sexual intercourse with a person under 18, regardless of whether the act was consensual or not. The law applies to heterosexual and homosexual intercourse and acts performed with or on a minor. For the purposes of this law, a “minor” is a person under the age of 18 years, and an “adult” is someone at least 18 years of age.

The law does not require force or coercion to be used for the act to be considered statutory rape. Further, you will likely face statutory rape charges even if the minor consented. The law aims to protect children since it deems minors as not mature enough to make informed decisions about sexual activity.

What Prosecutors Must Prove in a Statutory Rape Case

The state bears the burden of proof. Prosecutors must prove the following elements for a jury to find you guilty of statutory rape:

  • You engaged in sexual intercourse with the minor — This means that you had sexual penetration with the victim, however slight. However, ejaculation is not a requirement.
  • The alleged victim was under 18 at the time of the act — Prosecutors must prove the victim’s age was below 18 years when the alleged incident occurred.
  • You were not the victim's spouse — In California, it is not a crime for a person to engage in sexual intercourse with their spouse, even if one spouse is under 18.

Comparison Between Ordinary rape, Spousal Rape and Statutory Rape

Ordinary rape under Penal Code 261 involves non-consensual sexual intercourse accomplished through force, menace, coercion, violence, or fear of immediate and unlawful physical injury to the victim or someone else. The state can pursue misdemeanor or felony charges, depending on the specific circumstances of the case.

Spousal rape under Assembly Bill 1171, formerly Penal Code 262, involves non-consensual sexual intercourse with a former or current spouse. You could face misdemeanor or felony penalties if charged and convicted for this offense. The choice of what charges you should face depends on what prosecutors can prove.

Note: Spouses can be charged with spousal rape even if the sexual intercourse was consensual at the time it occurred, as long as one spouse later revokes their consent.

Statutory rape under Penal Code 261.5, on the other hand, involves sexual intercourse with a person under 18, regardless of whether the act was consensual or not. This crime is a wobbler, which means prosecutors can pursue misdemeanor or felony charges. Their decision is based on the facts of the case and your age relative to the victim's age.

These crimes carry potential penalties, including jail or prison time, fines, and sex offender registration mandates.

Determining the Minor’s Age

Legally, we turn a year older a minute past midnight on your birthday. You are only guilty of statutory rape if the victim was a minor when the alleged offense was committed. Thus, prosecutors must present evidence of the child’s age.

In most cases, prosecutors rely on the child’s birth certificate, driver's license, passport, or other official government-issued identification to determine their age. If these documents are unavailable, they can establish the minor’s age through testimony from a parent, guardian, or other reliable witnesses who know the minor's date of birth.

In some cases, the prosecution could also use other evidence, like school records, medical records, or other official documents, to establish the minor's age.

Can Minors Face Statutory Rape Charges?

Yes, minors can face statutory rape charges in California. However, the charges and penalties they face would likely differ from those faced by adult defendants.

Minors can be charged with a PC 261.5 violation if they engage in sexual intercourse with minors younger than them and below the age of 18. In such cases, the minors would be charged with violating Penal Code 261.5

The state will charge minors as juveniles. They would face different penalties, including probation, detention in a juvenile facility, and counseling or treatment programs. The precise penalties depend on the facts of the case and the laws in the jurisdiction where the crime occurred.

The decision to prosecute rests with prosecutors after evaluating the facts of the case. However, most prosecutors do not pursue charges in cases where both parties are minors.

Statute of Limitations for PC 261.5 Violations

The statute of limitations for violations of Penal Code 261.5 varies. In general, the statute of limitations for most misdemeanors is one year from the date of the offense. In contrast, the statute of limitations for most felonies is three years.

Penalties for Statutory Rape

Statutory rape is a wobbler offense. This means you risk facing misdemeanor or felony penalties if convicted. Your prior convictions also influence the type of charges you will face and the penalties you will likely receive upon conviction.

A plea bargain is also available. Prosecutors could reduce your charges from a felony to a misdemeanor in exchange for a guilty plea. The exact circumstances that would make you eligible for a plea bargain depending on the circumstances of your case. Here is a look at the general approach.

  1. The offense is a misdemeanor if you are no more than three (3) years older than the alleged victim.
  2. If you are more than three (3) years older than the alleged victim, the state could pursue misdemeanor or felony charges.
  3. If you are twenty-one (21) or older and the alleged victim is under sixteen (16) when the intercourse occurred, you will face misdemeanor or felony charges. However, the potential felony penalties are steeper than in situation (b).

If convicted of a misdemeanor violation, the potential penalties can include the following:

  • Up to one year in county jail.
  • Fines of up to $1,000.
  • Probation instead of time in jail.

If convicted of a felony, the potential penalties can include the following:

  • Sixteen months, 2, or 3 years in custody.
  • If you were 21 years or older and the alleged victim was under 16 years old at the time of the alleged incident, the potential sentence increases to 2, 3, or 4 years in custody.
  • Fines of up to $10,000.

Convictions also have an adverse impact on your future. You risk facing:

  • Difficulty finding employment and obtaining a professional license, and
  • Losing the right to vote or own firearms.

Civil Penalties for Unlawful Intercourse

In addition to criminal penalties, if you engage in unlawful intercourse (statutory rape), you risk facing civil penalties. Civil penalties include the payment of damages to the victim resulting from a civil lawsuit filed by the victim or his/her family on his/her behalf. The lawsuit will seek damages for any harm or injury the victim may have suffered from the sexual encounter.

Civil penalties for engaging in unlawful intercourse are based on the age difference between the defendant and the alleged victim.

If you are 18 years or older, you could be subject to the following fines: 

  • $2,000 if the victim is less than two years younger than you
  • $5,000 if the victim is at least two years your junior
  • $10,000 if the victim is at least three years younger than you
  • $25,000 if the victim was under 16 years old and you were over 21 at the time of the incident.

These are the maximum penalties, and the actual amount of damages awarded in a civil lawsuit could be less or more depending on the facts of the case.

Defenses You Can Assert in a Statutory Rape Case

The best defense to statutory rape depends on your attorney’s assessment of your case. His/her choice is one that, in his/her opinion, will result in the best legal outcome. Some common defenses to statutory rape include:

  1. Mistake of Age

The mistake of age relies on your having a reasonable belief that the alleged victim was of legal age. Thus, you proceeded to have sexual intercourse with the alleged victim based on this belief.

This defense works if you show that you reasonably believed that the alleged victim was of legal age. However, this defense could be difficult to prove in cases where you should have known that the alleged victim was underage based on his/her appearance or other circumstances.

Note: The mistake of age defense does not excuse defendants who recklessly or negligently failed to verify the alleged victim's age. An experienced attorney can help you evaluate the evidence in your case and determine if the mistake of age defense is applicable in your situation.

  1. False Accusations

A false accusation defense hinges on the idea that you are innocent and that the allegations of statutory rape are false. False accusations can occur for various reasons, including misunderstandings, mistaken identity, or a desire for revenge. In some cases, the alleged victim could have been coerced or pressured into making false accusations. In other situations, a victim could have falsely accused you due to mental health issues or other personal problems.

If you can provide evidence that the allegations are false, this can be a defense to statutory rape charges. However, proving that an accuser is lying can be challenging, and the prosecution could still proceed with the case even if you claim the allegations are false.

With the help of an experienced attorney, you should know if this defense applies to your situation. Your attorney will gather and present evidence that supports your innocence and undermines the accuser's credibility.

  1. Lapse of the Statute of Limitations

The statute of limitations could serve as a defense if the government failed to file charges within the period specified by law. The statute of limitations for statutory rape varies depending on the case's circumstances and the victim's age, as discussed above.

For example, suppose the victim was under 18 years of age at the time of the offense. In that case, the statute of limitations does not begin until the victim turns 18 or the crime is reported to law enforcement, whichever occurs first. If the victim was over 18 at the time of the offense, the statute of limitations begins to run on the date of the crime.

If the statute of limitations has lapsed, prosecutors can no longer pursue criminal charges for the crime. However, the government could still bring charges if it has a valid reason for the delay, like the discovery of new evidence.

Remember that the statute of limitations is a complex area of law and that the specific time and exceptions are case specific. That is, they can vary depending on the merits of the case.

  1. No Sexual Intercourse

When asserting the "no sexual intercourse" defense, you argue that no sexual intercourse occurred in a statutory rape case. Your defense attorney will raise this defense when prosecutors cannot prove that sexual intercourse occurred, as sexual intercourse is a necessary element of the crime.

For example, if the prosecution relies on circumstantial evidence or the alleged victim's testimony, defense attorneys could argue that there is no concrete evidence of sexual intercourse. Additionally, the alleged victim's testimony is unreliable or untruthful.

The prosecution must show beyond a reasonable doubt that sexual intercourse occurred between you and the alleged victim. Further, it must be clear to the jury that you were not legally married to the victim. Only then will the jury find you guilty. If your attorney can successfully challenge the evidence of sexual intercourse, the charges could be dismissed, or the jury could return a not-guilty verdict.

  1. You Were Married to the Alleged Victim

You can assert that you were legally married to the alleged victim during the sexual intercourse in a statutory rape case. Under California Penal Code 261.5, sexual intercourse between a married person and someone under 18 is not considered statutory rape. However, the law requires that both parties be legally married.

In this defense, you must show that a valid marriage existed between you and the alleged victim at the time of the sexual intercourse. You can do this by presenting a valid marriage certificate or other evidence of the marriage.

Minors can get married under the provisions of Family Code Section 302. According to this law, a minor can get married with the written consent of their parents or legal guardian. Children under the age of 16 must also obtain a court order and the written approval of their parents or legal guardians.

The court will consider the minor's reasons for wanting to get married and ensure that the child understands the consequences before granting the court order. Minors 16 or 17 years old must also appear in court and provide testimony to support their marriage request.

While California law allows minors to get married, there are restrictions on who they can marry. Children cannot legally marry an individual three years older than them. Additionally, minors cannot legally marry someone who is already married or who is a registered sex offender.

If the defense is successful, the courts will dismiss the charges, or the jury could return a not-guilty verdict.

However, it is crucial to remember that this defense can be challenging to prove in court. The prosecution could present evidence to dispute the validity of the marriage. Your attorney will help you understand the strength of this defense in your case and develop a strategy to defend against the charges.

Unlike Rape, Consent is NOT a Defense in Statutory Rape Cases

Statutory rape is a strict liability crime. Therefore, the prosecution does not have to prove that you knew the victim was under the age of consent. Thus, even if the victim consented to the sexual activity, it is still considered a crime.

Consent is not a defense in statutory rape cases because the law deems minors incapable of giving informed consent to sexual activity due to their age. As a result, the law seeks to protect children from exploitation and abuse, regardless of whether they consented to sexual activity.

Find an Experienced Los Angeles Criminal Defense Attorney Near Me

Statutory rape allegations are serious and deserve an ideal approach, one that an experienced attorney can offer. At the Los Angeles Criminal Attorney, we thoroughly investigate the facts of the case and advise our clients on the best course of action. Further, we will represent you should the case proceed to trial. Our team is ready to take on your case. Therefore, call us at 424-333-0943 to book your initial consultation.