Any sex crime in California is treated seriously. Several laws have been put in place to curb the occurrence of these offenses. Additionally, harsher penalties are imposed on the perpetrators of these crimes to discourage others from engaging in the same acts. Still, these crimes continue to happen. However, not all accusations against alleged perpetrators are genuine. Some people usually accuse others of sex crimes just to get back at them for the reasons best known to them. Others place accusations out of jealousy or anger. This scenario could happen to you too.

If you are wrongfully accused of any sex crime, including statutory rape in Orange County, contact attorneys from the Orange County Criminal Defense Attorney Law Firm for help. We boast the knowledge of California sex crime laws, could prove your innocence, and have your case dismissed. Where a dismissal is not possible, we might be able to reduce your charges so you can face lenient penalties. Reach out to us as soon as you are charged so we can have enough time to prepare a solid defense strategy. In this article, we look at the California law on statutory rape.

The Legal Meaning of Statutory Rape

Penal Code (PC) 261.5 is the law that describes a statutory rape offense in California. Statutory rape means having unlawful sexual intercourse with a child/minor. This crime occurs when you have sex with an individual who’s under eighteen years old.

In California, the lawful age of consent is eighteen years. Unlike other states, California doesn’t have close-in-age or Romeo & Juliet law exceptions. Violating PC 261.5 remains a crime irrespective of whether or not the sexual intercourse was consensual. You will also be convicted of this crime even if it was the minor (victim) who initiated the sex.

The fact is that nowadays, most teenagers are active when it comes to sexual matters. Statutory rape takes place all the time, and several otherwise law-obeying persons get themselves into trouble and later face charges.

Elements of the Crime

For the judge to find you guilty of violating PC 261.5 statutory rape laws, the prosecuting attorney must prove beyond a reasonable doubt three facts, to as the elements of statutory rape. The facts include:

  • You had sex with another party. Any level of penetration, irrespective of how small, counts as sex even if there’s no ejaculation.
  • You and the victim weren’t married to one another at that time. Even if the victim is currently married to another person, it doesn’t excuse responsibility for this crime. The same also applies if the victim used to be married before.
  • The victim in question was below eighteen years old when the offense took place.

You should keep in mind that there isn’t any condition for the prosecuting attorney to prove beyond a reasonable doubt that you used force to accomplish your sexual intercourse act. The prosecutor also doesn’t need to prove that the supposed victim didn’t agree to have sex. This is the main difference between statutory rape and ordinary rape as per the law, whereby in ordinary rape, the victim not consenting to sex is the primary element of this offense.

Therefore, the laws on statutory rape permit a criminal charge to arise from an otherwise loving and caring relationship. It is merely the ages of the involved parties that are relevant. On this note, the involved parties’ ages are critical during sentencing. The possible penalties for having illegal sex with a child vary depending on the victim’s age and the difference in age between the victim and the accused. Therefore, while proving elements of the crime, the prosecutor is required to establish the parties’ ages during the crime.

How Age is Determined

According to California law, one is considered to be a year older when the clock strikes 12:01 a.m. (a minute after midnight) on his/her birthday.

A Minor Can Face Statutory Rape Charges

You must keep in mind that you could face statutory rape charges even if you’re a child, that is, below eighteen years yourself at the time the sexual intercourse takes place. This seems a little confusing because, in a situation like this, the accused is practically also a statutory rape victim himself/herself. But it is the law.

Most prosecuting attorneys in California do not prioritize prosecuting teenagers for engaging in sexual intercourse with other teens. However, this does not mean it cannot happen. A case of statutory rape where the accused is a minor is likely to be tried before a juvenile court.

Keep in mind that the statutory rape statute of limitations is three years in case it is a felony and a year if it’s brought as a misdemeanor.

The Consequences of Statutory Rape

As we mentioned earlier, PC 261.5 statutory rape is prosecuted as a wobbler offense. This means the prosecutor may choose to charge you with either a felony or a misdemeanor. We have three conditions that determine whether your crime will be prosecuted as a felony or a misdemeanor and the potential punishments you will face. These conditions include:

  1. If you’re not over three years older than the supposed victim, PC 261.5 is always prosecuted as a misdemeanor.
  2. In case you’re over three years older compared to the supposed victim, the crime can be prosecuted either as a felony or a misdemeanor.
  3. If you’re twenty-one years old and above, and the involved victim is below sixteen years when the sex occurs, you will also face felony or misdemeanor charges. However, the possible penalties for a felony conviction will be harsher than those of the scenario we described in (ii) above.

If (ii) and number (iii) in the list above apply to your case, when determining whether you should be charged with a felony or misdemeanor, the prosecution will consider your criminal record and the facts surrounding your particular situation.

Also, keep in mind that as we mentioned earlier, California is not governed by a Romeo & Juliet law. Under a Romeo & Juliet law, it is lawful for a child to engage in sexual intercourse with another person provided both the involved persons are around a similar age. But, in California, it is always unlawful to have sex with a child, even if the parties in question are both minors. However, the crime will only be a misdemeanor if the participating parties’ age difference is not more than three years.

Penalties for Misdemeanor PC 261.5 Statutory Rape

If you’re convicted of statutory rape as a misdemeanor under the circumstances mentioned above, then the possible punishments include informal probation, a fine of up to $1000, and a maximum jail sentence of one year.

Penalties for Statutory Rape as a Felony

If you are convicted of a felony statutory rape offense, you will face the following penalties:

  • Probation (either formal or informal) with a maximum of one year in jail, or
  • Three years, two years, or sixteen months in jail except if you were twenty-one years or older while the involved victim was below sixteen years. In this case, the possible sentence will be four years, three years, or two years.
  • A fine that does not exceed $10,000.

Civil Punishments for Unlawful Sexual Intercourse in California

Apart from the above criminal penalties, if charged with statutory rape in California, you could be subject to civil penalties. Civil penalties refer to non-criminal fines that you could be compelled to pay apart from paying the criminal fines and serving time. Only the adult defendants (those who are eighteen years and above) can be asked to pay civil fines. Civil punishments vary depending on the difference between the age of the parties involved. The maximum fines include:

  • $2,000 in case the victim in question is less than two years younger than you.
  • $5,000 when the victim involved is at the minimum, two years younger than you.
  • $10,000 in case the complainant is, at the minimum, three years younger than you.
  • $25,000 when the victim involved was under sixteen years, and you were above twenty-one years old.

Legal Defenses to a Charge of Statutory Rape

There are different legal defenses against violation of PC 261.5 law that an attorney who is experienced in defending sex crimes can argue for you in court. In this section, we are going to discuss a few of the defenses that are commonly used.

You Reasonably and Honestly Believed the Victim was Above Eighteen Years

If you reasonably and honestly believed the supposed victim was above the age of eighteen years when you had sexual intercourse with him/her, you cannot be convicted of statutory rape. This defense is the more specific variation of the overall defense of the mistake of fact. When arguing this defense, the kinds of proof that could support it may include, for instance:

  • The statements the supposed victim made that he or she was above eighteen years of age
  • The victim’s general appearance or attire
  • Where you and the victim met (for example at adult peoples’ venue or party)
  • Another party confirmed that the alleged victim was eighteen years old

If you meet a minor in, for example, a bar, it might be reasonable to trust that they’re over eighteen years old. The mistake of fact defense isn’t available to a culprit that is over twenty-one years old, and the minor (victim) is below sixteen years.

False Accusations

Like other sex-related crimes, statutory rape is a crime that one can be falsely accused of committing. As mentioned earlier, charges of statutory rape usually arise out of jealousy, revenge, or anger. Sometimes, the accusations of statutory rape are made by the child’s parent or guardian who is not happy about the person with whom his or her child has a romantic relationship. 

If you’re placed under arrest for violating PC 261.5 laws, stay silent. Do not try explaining your version of the story to the police or ask for forgiveness. Let your lawyer handle the situation. A charge of statutory rape can have harsher repercussions. That is why your attorney will need to investigate thoroughly to help you prove your version of how things happened and your innocence.

Consent isn’t a Legal Defense Against Statutory Rape Like it is For PC 261 Rape.

Under PC 261, rape laws, it is a legal defense against the offense if the supposed victim agreed to have sexual intercourse.  However, when it comes to statutory rape, this is not it. The reason why violating PC 261.5 is an offense is that a minor (a person under eighteen years old) is lawfully considered incapable of giving consent. This implies that even if the involved victim were willing to participate in the sexual act, this fact would not hold as a defense against a charge of statutory rape. California state either correctly or incorrectly believes that a minor is not mature enough to appreciate the repercussions of their acts legally.

Marital Exception for a Statutory Rape Offense

California has a marital exception when it comes to a statutory rape offense, which permits married couples to engage in consensual sexual intercourse even when their ages would forbid it if they weren’t married. The legal defense of marital exception is a remnant of the marital rape exemption.

Like mentioned earlier, the law believes that minors are lawfully incapable of consenting to engage in sexual intercourse. For instance, if Mary, a sixteen-year-old, has sex willingly with Brad, her twenty-three-year-old boyfriend, Brad, can be prosecuted under the rape law since Mary isn’t legally capable of consenting sex.

However, if Mary and Brad are married and reside in California, Brad doesn’t need to fear being charged for engaging in consensual sexual intercourse with Mary. The reason for this is that California state has a marital exemption to the statutory rape laws.

But, if Brad were to force Mary to have sexual intercourse against her will (rape her), he would not have the protection of the law irrespective of whether these two are in a marital union or not.

Statutory Rape and the Requirement to Register as a Sex Offender

Fortunately for you, as per the present state of California law, being convicted of statutory rape doesn’t require you to register as a sex offender. However, various related crimes do need one to register as a sex offender, including lascivious and lewd acts with a minor and rape.

The Difference Between Statutory Rape and Rape

Statutory rape and rape are two distinct offenses. As per the law, rape refers to a sexual intercourse act against the victim’s consent or will that happen place under different circumstances, which include when:

  • The victim involved cannot resist because of drug or alcohol intoxication
  • The culprit uses the threat of force or actual physical force to control and overpower the victim
  • The victim in question fears that he/she or another person will be hurt in case the victim doesn’t submit
  • The perpetrator uses duress like an implied or direct threat of retribution or hardship to pressurize the victim into the act
  • The culprit uses fear, threats, or force to have sex against his/her spouse’s will

When hearing a rape offense case, the jury considers the victim’s permission or consent, but cannot consider it when it comes to statutory rape. Additionally, the penalties for a rape offense are harsher compared to those of statutory rape.

Related Offenses to Statutory Rape

We have several sex crimes that are related to statutory rape. You can be charged with these crimes instead of or together with statutory rape. They include:

Lascivious or Lewd Conduct With a Minor (PC 288)

The offense of lascivious or lewd conduct with a minor occurs when you touch a minor who’s fourteen years old and below (and fifteen years old and below under specific circumstances) somewhere on their body to achieve sexual gratification or arousal.

Unlike statutory rape, PC 288 is a felony offense subjecting you to a maximum of eight years in prison.  Additionally, a PC 288 conviction carries a sex offender registration requirement if you’re convicted per PC 290. Failure to comply with the sex offender registration requirement is a distinct felony offense.

The prosecutor will charge you with PC 288 in case you perform any sexual act on a minor that’s fourteen years or below (or fifteen years or below in given situations) with the specific intent of appealing to, arousing, or otherwise gratifying the passions, sexual desires, or lust of the child or yourself.  This would be the case even if the sexual act were over his or her clothing. Sex isn’t an element of the crime for PC 288.

Even though it appears that a person who violates PC 261.5 laws with a minor under fourteen years would also have violated PC 288 laws, this is not necessarily it. Under statutory rape law, there needs to be a general intention to participate in sexual intercourse with a child. PC 288, on the other hand, requires that the defendant has a specific purpose of gratifying or arousing sexual desire, passions, or lust.

Because statutory rape is a lesser severe offense compared to PC 288, it is usually used in plea bargaining for the defendants that are initially prosecuted under PC 288 law. If your charge is reduced from lewd conduct with a minor to statutory rape, you will avoid registering as a sex offender.

Rape (PC 261)

You violate PC 261 rape laws if you have sex with someone else without their consent, and the sex is achieved through force, fraud, or threats. This is different from the statutory rape crime under PC 261.5, where the issue of whether or not the supposed victim agreed to the sex doesn’t count.

The crime of rape is charged as a felony at all times. It is punishable by a maximum of eight years in prison. Also, it is a strike offense as per the three-strikes laws. And, in many cases, a conviction of rape requires lifetime sex offender registration by the culprit.

Like statutory rape, rape charges occur mostly due to false accusations that arise out of jealousy, a relationship that has gone sour, or revenge. If an ex-boyfriend or ex-girlfriend you dated when he/she was below eighteen years accuses you of raping him/her, you might find yourself being charged with both PC 261 rape and PC 261.5 statutory rape.

In a situation like this, an experienced criminal defense lawyer is crucial. He or she can assist you in fighting both charges. Alternatively, he/she can seek to have at least the allegations of rape dropped so that you may avoid the requirement to register as a sex offender, and you’re less probably to be subjected to felony penalties.

Oral Copulation With a Minor (PC 288a)

PC 288a oral copulation with a minor happens when a person copulates the mouth of someone else with their anus or sexual organ, and the victim in question is a child. This offense is charged as a wobbler under the law. The crime relates to statutory rape since both of them involve sexual acts and minors. Therefore, you can end up being charged with these two offenses at the same time.

If you are sentenced for oral copulation with a minor and the minor is below eighteen years old, the punishment may include:

  • A maximum prison sentence of one year
  • A fine that does not exceed $1,000
  • The requirement to register as a sex offender for, at the minimum, ten years

Keep in mind that oral copulation includes any contact, regardless of how small, between one person’s mouth and the anus or sexual organ of someone else. Penetration isn’t required.

Find an Experienced Orange County Criminal Defense Attorney Near Me

Like other sex crime accusations, statutory rape allegations are severe. Defense against the claims requires the skills of a highly-trained sex crime defense lawyer. If you are facing statutory rape charges in Orange County, contact our sex crime lawyers at Orange County Criminal Defense Attorney Law Firm as soon as possible. We have considerable experience in California sex crime laws and have everything it takes to challenge any proof against you and make sure your rights are protected.  Don’t gamble with your future. Contact us at 714-740-7848 today so we can review your case and the possible defense options. We will work to ensure we provide the best possible legal representation that will yield the best possible results.