Statutory Rape

In California, statutory rape is the act of having sexual intercourse with another person under the age of 18 who is not a lawful spouse. Statutory rape is a misdemeanor or felony regardless of whether the minor consents to sex or even initiates it. Statutory rape laws are enacted to protect minors from the consequences of sex and to deter teen pregnancies. Thus, statutory rape doesn’t include sexual acts beyond vaginal sex or sex close to vaginal sex (such as oral copulation and sodomy) as these are covered under separate statutes. In California, a person found guilty of statutory rape faces conviction and may subject to civil penalties that can reach tens of thousands of dollars.

Elements of Statutory Rape:

(a) Sexual intercourse

  • Sexual intercourse is defined as penetration with the penis, no matter how slight, in the vagina or genitals.

with a minor,

  • A minor is a person under the age of 18. Emancipated minors are still considered minors for the purpose of this law. 

who is not one’s spouse.

  • It’s legal to have sex with one’s lawfully wedded spouse, even if one’s spouse is under the age of 18. In California, persons under the age of 18 must get parental permission and a court order before marrying.If someone under the age of 18 is lawfully married in another state and moves to California, then California will recognize that as a legal marriage.

(b) Any person engaging in sexual intercourse with a minor who is not more than three years younger or three years older than the perpetrator.

(c) Any person engaging in sexual intercourse with a minor who is more than three years younger or three years older than the person.

(d) Any person 21 years of age or older engaging in sexual intercourse with someone 16 years old or younger.

As the age gap between the sex partners increases, the severity of the charges increases, too, and the age gap can be one factor that determines whether statutory rape is charged as a misdemeanor or a felony.

What about young lovers?

(b) and (c) criminalizes sexual intercourse with a minor, including sexual intercourse between minors. There are “Romeo and Juliet” protections in the statutory rape laws in some states to keep young lovers from being prosecuted for having consensual sexual intercourse with each other. However, the only protection in California for having consensual sexual intercourse with another minor closer to you in age is to be charged with a misdemeanor rather than a felony.

Penalties for Statutory Rape:

When the minor IS NOT more than 3 years older or 3 years younger than the perpetrator:
Statutes: Penalties:
§261.5(b), §261.5(e)(1)(A-C)
  • Incarceration up to one year.
  • Civil penalties up to $2000-$10,000.
  • If a civil penalty is imposed, there may be a fine up to $70.
When the minor IS more than 3 years older or 3 years younger than the perpetrator:
Statutes: Penalties:
§261.5(c), §261.5(e)(1)(C), §1170(h)
  • Incarceration up to one year if charged as a misdemeanor. 
  • If charged as a felony, incarceration of at least 16 months to 2 – 3 years.
  • If there’s prior serious or violent felonies, then the felony sentence will be served in state prison.
  • Civil penalties up to $10,000.
  • If a civil penalty is imposed, there may be a fine up to $70.
When the perpetrator is at least 21 and the minor is under 16:
Statutes: Penalties:
§261.5(d), §261.5(e)(1)(D), §1170(h)
  • Incarceration up to one year if charge as a misdemeanor.
  • If charged as a felony, incarceration for 2 to 3 years.
  • If there’s prior serious or violent felonies, then the felony sentence will be served in state prison.
  • Civil penalties up to $25,000.
  • If a civil penalty is imposed, there may be a fine up to $70.  

Other Penalties:

Though convictions for sex crimes can be especially stigmatizing, a conviction for statutory rape doesn’t require registering as a sex offender. However, there is still a stigma of having a prior conviction for a sex-related crime, without consequences beyond incarceration, probation, and civil penalties, including:

  • Others making the mistake and assumption that you committed a violent sex crime,
  • Social marginalization, including divorce and alienation from family,
  • Difficulty obtaining work with or near minor children,
  • Problems with custody and visitation with any children resulting from the statutory rape,
  • Difficulty finding work in certain jobs or professions where a clean record is required, and
  • If you have a romantic relationship with the minor, it will probably not survive this.

Possible Defenses:

There was a good faith belief that the sex partner wasn’t a minor. A good faith belief that an individual was not a minor when engaged in sexual intercourse may be presented as part of a defense. Unlike many other states, in California, statutory rape is general intent offense.

Honestly believing that the sex partner wasn’t a minor is a defense because it means that there is no intent to have sex with a minor. If the defendant raises a defense of lack of criminal intent, the government then has the burden to prove that there was knowledge that the sex partner was a minor and the defendant choose to have sex with her anyway. This may require the defendant to provide evidence that there was a reasonable belief that the minor was actually of age at the time of sexual intercourse.

For example: A minor uses fake IDs to get a job at a liquor store and even fills out tax paperwork with the fake IDs. The fake IDs say she’s 22. She and the store manager, a man of 24, begin an affair that turns sexual. Months into the affair, he sees a picture of her in the local newspaper with her high school soccer team with a caption stating that she’s 16. He immediately fires her and ends the affair.  This is the first and only time he had a relationship with a minor

The sex partner was your lawful spouse at the time of sexual intercourse, or you had a good faith belief that the partner was your lawful spouse. It’s legal to have sex with one’s own lawful spouse, even if that spouse is under the age of 18, provided that the marriage is lawful. “Lawful marriage” doesn’t extend to non-legally binding marriages, such as “spiritual marriages,” or illegal marriages, such as bigamist and polygamist marriages, or other arrangements a minor cannot legally enter, such as a common law marriages (from another state), or domestic partnerships.

There was no sexual intercourse. Statutory rape requires sexual intercourse. If there was no penile penetration, there is no statutory rape. However, if there was actual sexual contact between an adult and a minor, even if there was no intercourse, then the government may charge you in the alternative with another offense, depending on the nature of the sexual contact.

You did not consent to sexual intercourse. A minor may not force sex on another person, and a person who doesn’t consent to sexual intercourse with a minor, and only does so against their will has not committed statutory rape.

Some Non-Defenses to Statutory Rape:

Statutory rape is distinct from other crimes, such as forcible rape, and common defenses other sex crimes may not apply to statutory rape. The following are not defenses to statutory rape:

  • Consent. Statutory rape is specifically the offense of having consensual sex with a minor. Unlike forcible rape and sexual assault, where an element of the offense is engaging in sexual conduct with a person without their consent, consent is simply not an element of statutory rape. Instead, young age is the forbidding factor that makes the sex illegal.
  • Unreasonable Mistake. Simply assuming that the minor is eighteen or over is not a defense. Unlike a good faith belief, where the defendant was either deceived or reasonably lead to believe that the minor was actually an adult, an unreasonable belief wouldn’t be shared by the average, reasonable adult. 

    For example, Jerry meets Gina in the bar side of a chain bar/restaurant, buys her a few drinks, and offers to take her home. They have sexual intercourse in the back of his car. Jerry claims that he thought she was at least 21 because she was in a bar. However, Gina had braces, wore a trainer bra, and was carrying a backpack full of high school textbooks. 

  • The minor’s sexual history or sexual knowledge. A sexually active or sexually experienced minor is still not able to legally consent to sex according to California law. Even if you know that the minor has had sex with other people, the minor knows about sex, or seems much mature than they are, the law makes no concessions.

  • The minor is the one who initiated sex. Unless the minor forced you into sexual intercourse, whether they initiated sex is irrelevant.

  • The people involved in sexual intercourse were both minors. A minor can be charged with statutory rape if they have sexual intercourse with another minor. In California, minors, who cannot consent, don’t have the same sexual privacy that adults have. Their sexual behavior is the business of the adults in their lives, and thus the government. It’s entirely possible to be charged with statutory rape and be the victim of statutory rape from the very same act of sexual intercourse.

    For example: Caleb is sixteen years old and Madison is fifteen years old. Caleb and Madison have been dating since the first week of the school year. They go to Caleb’s junior prom and have sex that night. Madison’s parents find out. They’re angry that she lost her virginity, so they file a police report against Caleb for statutory rape. When Caleb’s parents find out, they file a police report against Madison for statutory rape, too

Defense Strategies:

The best defense for beating statutory rape charge is to disprove one of the elements of statutory rape. The government has to prove every element of statutory rape for a jury to find a defendant guilty beyond a reasonable doubt.

Plea bargain. If the state has strong evidence of sexual intercourse with a minor (such as the minor becoming the mother of your child), then it may be in your best interest to make a deal with the government. This may allow you less jail time and lower or no civil penalties.

While this may not allow you plea to a lesser charge, you may be able to plea to statutory rape in lieu of going to trial for other charges, such as lewd and lascivious acts with a minor or sodomy, where a conviction means registering as a sex offender.

Attack government misconduct. The government’s job is to protect and serve the people. It must uphold the rights of all people, including those accused of offenses. The government may not violate your rights in attempt to arrest you, gather evidence against you, or advance their case in any other way against you. Government misconduct may include behaviors such as such as willfully hiding evidence that would prove your innocence, denying you the right to have an attorney present while speaking to the police, or obtaining evidence through illegal search and seizure. If these occur, you may move the court to dismiss the case before it goes to trial or to exclude evidence that was improperly obtained. The government must prove all elements of the charges against you, and without evidence for all the elements, the case can’t go forward. 

Offer new evidence not introduced by the government to prove innocence or disprove guilt. If you have evidence that would tend to show your innocence (also known as exculpatory evidence), you can bring that forward. For example, exculpatory evidence may demonstrate that you didn’t or couldn’t have had sex with the minor at the time, place, or under the circumstances offered.

For example: A man, 23, is accused of having sexual intercourse with a weekend hospital volunteer, 17, while he was recovering from surgery. However, hospital records show that he was not only on morphine, but was using a urinary catheter the entire time the minor was volunteering that weekend, making sexual intercourse a near impossibility.

Final Thoughts:

Even though a statutory rape charge may seem less serious than charges for other sex-related offenses, there are still stiff consequences if you’re found guilty. Every set of facts is different for every case. A solid understanding of the law is required for crafting a solid defense to a charge of statutory rape. An experienced criminal defense attorney understands the laws and the

References


  1. See (Cynthia M. v. Rodney E. (1991) 228 Cal.App.3d 1040, 1044 [279 Cal.Rptr. 94].); (M. v. Superior Court of Sonoma County (1979) 25 Cal.3d 608, 614 [159 Cal.Rptr. 340, 601 P.2d 572].) [”The statute makes no statement about the girl's ability to consent. Rather, the statute merely prohibits the act of sexual intercourse with an underage female not the wife of the perpetrator rejecting consent as a defense. In this regard section 261.5 is no different than a variety of other statutes which prohibit minors from engaging in certain activities of much less consequence to the minor, no matter how well informed, how knowledgeable and how willing or consenting the minor might be.”]

  2. See 1996 Cal ALS 789, 1996 Cal AB 1490, 1996 Cal Stats. ch. 789.

  3. Cal. Pen. Code §288; Cal. Pen. Code §286.

  4. Cal. Penal Code § 261.5 subd.(e).

  5. Cal. Penal Code § 261.5 subd.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.”]

  6. 2007-1000 CALCRIM Archive 1070 (2017); 2007-1000 CALCRIM Archive 1071 (2017); Cal. Pen. Code §263; [People v. Rouse (2012) 203 Cal.App.4th 1246, 1267 [138 Cal.Rptr.3d 210].]: The appellate court upheld a conviction on numerous charges of sexual offenses against children, one of which included sexual intercourse with an 11-month old baby where the defendant penetrated her labia with his penis.

  7. Cal. Pen. Code, § 261.5 subd. (a) [“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.”]

  8.  

  9. [People v. Caldwell (1967) 255 Cal.App.2d 229, 230 [63 Cal.Rptr. 63].]

  10. See [People v. Courtney (1960) 180 Cal.App.2d 61.]. [The appellate court upheld the conviction of statutory rape against a man who had sex with a married minor who was not his own wife.]

  11. Cal. Fam. Code § 302 (2017).

  12. USCS Const. Art. IV, § 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”; Cal. Fam. Code, § 308. [“A marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California.”]

  13. Cal. Pen. Code §261.5 subd. (b).

  14. Cal. Pen. Code §261.5 subd. (c).

  15. Cal. Pen. Code §261.5 subd. (d).

  16. Cal. Pen. Code §261.5 subd. (b).

  17. Pen. Code, § 290 subd. (c).

  18. See [People v. Hernandez (1964) 61 Cal.2d 529, 535-536 [39 Cal.Rptr. 361, 393 P.2d 673].].

  19. In many other states, statutory rape is a strict liability offense.

  20. 2017-1000 CALCRIM Archive 1070 (2017); 2007-1000 CALCRIM Archive 1071 (2017).

  21. See [People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr. 735].].

  22. See Cal. Pen. Codes §§281-283 for the crime and punishment of bigamy.

  23. See Cal. Pen Code §286.

  24. See Cal. Pen. Codes §§261-262.

  25. .

  26. [Cynthia M. v. Rodney E. (1991) 228 Cal.App.3d 1040, 1044 [279 Cal.Rptr. 94].); (People v. Brown (1973) 35 Cal.App.3d 317, 326 [110 Cal.Rptr. 854].].

  27. See [People v. Battles (1966) 240 Cal.App.2d 122 [49 Cal.Rptr. 367].]: The appellate court affirmed the trial conviction for statutory rape when the defendant failed to show sufficient proof that a girl under the age of 16, who appeared obviously underage to the court, was able to truly deceive the defendant into thinking she was 21 before they had sexual intercourse.

  28. See [People v. Pantages (1931) 212 Cal. 237, 277 [297 P. 890].)

  29. See [People v. Brown (1973) 35 Cal.App.3d 317, 326 [110 Cal.Rptr. 854].]: [“It is the age of the victim and not "consent" or lack of force which distinguishes unlawful intercourse from rape. Because of her age the minor is incapable of giving consent. Consent is irrelevant to the crime of unlawful intercourse. One cannot expect a child of tender years to resist.”]

  30. Cal. Pen. Code §261.5 subd. b; [In re T.A.J. (1998) 62 Cal.App.4th 1350, 1352-1353 [73 Cal.Rptr.2d 331].].

  31. See [In re T.A.J. (1998) 62 Cal.App.4th 1350, 1361 [73 Cal.Rptr.2d 331].]: [“there is no privacy right among minors to engage in consensual sexual intercourse.”]

  32. at 1364-65.

  33. Cal. Pen. Code. §290 subd.(c).