California "Statutory Rape" Laws

Unlawful Sexual Intercourse with a Person Under 18

Penal Code 261.5 pc

California "statutory rape", under Penal Code 261.5, takes place when any person engages in sexual intercourse with a person under 18 (commonly referred to as unlawful sex with a minor).¹

Also known as "unlawful sexual intercourse", this offense is a wobbler, which means that...depending on the circumstances...it may be charged as either a misdemeanor or a felony.

Statutory rape...like other sex crimes that people allege out of jealousy, anger, or revenge...is frequently charged against the innocent. False accusations and wrongful arrests lead to a large number of bogus California statutory rape charges.

Having an attorney who specializes in defending against California sex crimes is the key to safeguarding your rights...and to protecting your future.

In order to help you understand California statutory rape laws, our California sex crimes defense attorneys will address the following:

How Does the Prosecutor Prove that I am Guilty of Penal Code 261.5 PC?

Penalties, Punishment, and Sentencing for Statutory Rape

How Do I Fight a Penal Code 261.5 PC Statutory Rape Charge?

Does Statutory Rape in California Require Registration as a Sex Offender?

Penal Code 288 Lewd Acts with a Minor -- Child Molestation

If, after reading this article, you have additional questions, we invite you to contact us.

You may also find helpful information in our related articles on California Penal Code 261 Rape, Marital Rape, Date Rape and Penal Code 288 Lewd Acts with a Minor (otherwise known as child molestation).

How Does the Prosecutor Prove that I am Guilty of Penal Code 261.5 PC?

In order to convict you of statutory rape under California Penal Code 261.5, the prosecutor must prove at least three facts (otherwise known as "elements of the crime"). These facts include²:

1. that a male and female engaged in an act of sexual intercourse (any amount of penetration, regardless of how slight, constitutes sexual intercourse...even if there is no ejaculation),



2. that the persons involved in the act were not married to each other at the time (the fact that the minor is married to another or was formerly married does not excuse liability for this offense³), and



3. that the alleged victim was under 18 at the time of the offense.

It is important to note that there is no requirement for the prosecutor to prove that force was used to accomplish the sexual intercourse. California statutory rape laws allow criminal charges to arise out of an otherwise caring and loving relationship...It's simply the age of the parties that is relevant. And on that note...

The age of the parties is critical to sentencing. As such, the prosecutor may additionally have to prove that at the time of the alleged offense:

1. you and the alleged victim were no more than 3 years apart in age⁴,



2. you and the alleged victim were more than 3 years apart in age⁵, or



3. you were 21 or over and that the alleged victim was under 16⁶.

Penalties, Punishment, and Sentencing for California Statutory Rape

As previously stated, California Penal Code 261.5 PC (statutory rape law) is a wobbler. There are three circumstances that determine how the offense will be charged:

1. if you are no more than three years older than the alleged victim, the offense is a misdemeanor⁷,



2. if you are more than three years older than the alleged victim, the offense may be charged as a misdemeanor or a felony⁸, and



3. if you are 21 or older and the alleged victim is under 16, you face either a misdemeanor or a felony⁹.

When deciding whether to charge you with a misdemeanor or a felony, the District Attorney considers (1) the facts of your specific case, and (2) your criminal history.

Misdemeanor penalties under California statutory rape law include¹⁰:

• informal probation,



• a maximum one-year county jail sentence, and



• up to $1,000 in fines.

Felony penalties for statutory rape include¹¹:

• probation (either informal or formal),



• between 16 months and four years in the California State Prison, and



• up to $10,000 in fines.

We earlier mentioned that there is no requirement that you "force" yourself on the alleged victim in a California statutory rape case. If, however, the alleged victim accuses you of causing him/her great bodily injury, you could face an additional three to five years in the state prison.¹² "Great bodily injury" is defined as a significant or substantial physical injury.

Civil penalties for California unlawful intercourse

In addition to the above punishment, an individual charged with California statutory rape may also face civil penalties. Civil penalties range from $2,000 to $25,000, depending on the age difference between the parties.¹³

How Do I Fight a Penal Code 261.5 PC Statutory Rape Charge?

There are a variety of defenses to a California statutory rape charge that a skilled California sex crimes defense lawyer could present on your behalf. The following are examples of some of the most common.

You honestly and reasonably believed that the alleged victim was over 18

If you honestly and reasonably believed that the alleged victim was over 18 at the time you had sex, you can't be convicted under California statutory rape law.¹⁴ The types of evidence that can support your claim could include, for example:

• statements made by the alleged victim that he/she was over the age of 18,



• his/her attire and general appearance, and



• where you met the alleged victim (at an adult party or venue, for example).

Unlike California Penal Code 261 rape, consent is not a defense

Under Penal Code 261, California rape laws make it a defense to the crime if the alleged victim consented to having sex. With statutory rape, however, this isn't the case.

The reason that statutory rape is a crime is because minors are legally unable to give consent. This means that even if the alleged victim was a willing participant to the act, that fact won't serve as a legal defense to a California statutory rape charge. This is because the state believes that minors are too young to appreciate legally the consequences of their actions.

False accusations

Much like any other California sex crime, statutory rape is an offense that is ripe for false accusations. California statutory rape charges are often initiated out of anger, jealousy, or revenge...sometimes even by the minor's parent who doesn't care for the individual who his/her child is dating.

As well known California sex crimes defense attorney John Murray explains¹⁵, "If you are arrested for statutory rape, remain silent. Don't try to explain your side it to the cops or talk your way out of it. Let me handle it; that's what I'm here for. A statutory rape charge can have significant consequences, which is why I will conduct a thorough investigation to help prove your side of the story...and your innocence."

Does Statutory Rape in California Require Registration as a Sex Offender?

No. Under the current state of the California statutory rape law, a conviction for Penal Code 261.5 does not require one to register as a sex offender pursuant to Penal Code 290 and California's Megan's Law. However, certain related offenses do require sex offender registration, including rape, marital rape, date rape and lewd acts with a child.

California Penal Code 288 Lewd Acts with a Minor -- Child Molestation

Unlike California statutory rape, most lewd acts with a minor (also known as child molestation) are necessarily felony offenses, subjecting the accused to up to eight years in state prison. In addition, a Penal Code 288 (a) lewd or lascivious acts with a child charge carries a requirement that anyone convicted of this offense register as a sex offender pursuant to Penal Code 290 PC.¹⁶ (Failure to Register as PC 290 Sex Offender is a separate felony).

Prosecutors will pursue a Penal Code 288 PC charge if you commit a sexual act upon a child under 14 (or 15 under certain circumstances)...even over his/her clothing...with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of yourself or the child.¹⁷ Sexual intercourse is not a requirement for this offense.

Although it seems that an individual who commits statutory rape with a child under 14 would also violate Penal Code 288 PC, that isn't necessarily the case. California statutory rape only requires a general intent to engage in sex with a minor. Penal Code 288 requires a specific intent to "arouse or gratify lust, passions, or sexual desires".¹⁸

This is just one example of why an individual accused of a California sex offense should consult with a defense attorney who specializes in this area of the law. This type of attorney knows the most effective ways to help his/her clients defend against these socially stigmatized charges.

Since statutory rape under California Penal Code 261.5 is a less serious offense, it is often used as a plea bargain for those who are initially charged with child molestation to avoid the lifetime sex offender registration requirement.

If you have additional questions about California statutory rape laws or would like to discuss your case confidentially with one of our California sex crimes defense attorneys, please don't hesitate to contact us.

We have local criminal law offices in Los Angeles, Orange County, Riverside, San Bernardino, San Diego, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.

Legal References:

¹California Penal Code 261.5 -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties. ("(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.")

²California Jury Instructions -- Criminal. CALJIC 16.164 - Unlawful Sexual Intercourse [California statutory rape], defined. ("In order to prove this crime, each of the following elements must be proved: [1] A male and female engaged in an act of sexual intercourse; [2] The persons were not married to each other at the time of the act of sexual intercourse; [and] [3] The alleged victim was under 18 years of age at the time of the act of sexual intercourse [.]")

³ People v. Sheffield (1908), 9 Cal.App. 130, 132 (overruled on different grounds). ("It is unnecessary to allege that the female had never been married to anyone before the commission of the act. It is sufficient to aver and prove that she was under the age of consent and not at the time the wife of the one having sexual intercourse with her. The offense is complete under the statute, even though the female may have been at the time the wife of another.")

⁴See CALJIC 16.164 California statutory rape, above. ("The alleged victim was not more than three years [older] [younger] than the perpetrator.]")

⁵CALJIC 10.40.1 -- Unlawful Sexual Intercourse [California statutory rape], defined. ("The alleged victim was under 18 years of age, and more than three years younger than the perpetrator at the time of the act of sexual intercourse.")

⁶CALJIC 10.40.2 -- Unlawful Sexual Intercourse [California statutory rape], defined. ("A person 21 years of age or older engaged in an act of sexual intercourse with a person under the age of 16.")

⁷California Penal Code 261.5 -- Statutory rape. ("(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.")

⁸California Penal Code 261.5 -- Statutory rape. ("(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 in the state prison.")

⁹California Penal Code 261.5 -- Statutory rape. ("(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 in the state prison for two, three, or four years.")

¹⁰California Penal Code 261.5 -- Statutory rape, endnotes 7 and 8, above. See also California Penal Code 19 -- Punishment for misdemeanor. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")

¹¹California Penal Code 261.5 -- Statutory rape, endnotes 8 and 9, above. See also California Penal Code 18 -- Punishment for felony. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.") See also California Penal Code 672 -- Offenses for which no fine prescribed. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

¹²CALJIC 17.20.1 Infliction of Great Bodily Injury -- Sex Crimes. ("It is alleged [in Count[s] ] that in the commission or attempted commission of __________ the defendant[s] , inflicted great bodily injury on [the alleged victim] [__________]. If you find a defendant guilty of , it then will be your duty to determine whether that defendant personally inflicted great bodily injury on [the alleged victim] [__________] in the [attempted] commission of __________. "Great bodily injury" means a significant or substantial physical injury. The commission of the crime of __________ does not by itself constitute great bodily injury. Minor, trivial or moderate injuries, inherent in the crime of __________, do not constitute great bodily injury. However, if the amount of force used in the commission of [the] __________ resulted in a significant or substantial injury to any part or portion of the body, that injury constitutes great bodily injury. See also California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years...(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury.") These sections apply to all California felonies, including a felony charge for California Penal Code 261.5 statutory rape.

¹³California Penal Code 261.5 -- Statutory rape. ("(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 the following 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).")

¹⁴CALJIC 10.67 -- Belief as to Age -- Unlawful Sexual Intercourse...("In the crime of unlawful sexual intercourse [otherwise known as California statutory rape], general criminal intent must exist at the time of the commission of the act of [sexual intercourse]. There is no general criminal intent if the defendant had a reasonable and good faith belief that the other person was 18 years of age or older at the time that person engaged in the act of [sexual intercourse]. Therefore, a reasonable and good faith belief of such age is a defense to unlawful [sexual intercourse]. If after consideration of all of the evidence, you have a reasonable doubt that the defendant had general criminal intent at the time of the act of [sexual intercourse], you must find [him] [her] not guilty of the crime.")

¹⁵Los Angeles sex crimes defense attorney John Murray defends against California sex crimes and other criminal and DUI charges throughout Los Angeles, Orange County, and the South Bay.

¹⁶Registration as a sex offender under California Penal Code 290 is required for many California sex crime convictions, including Penal Code 288 lewd acts with a minor. It is not, however, required for a California statutory rape conviction under Penal Code 261.5 PC.

¹⁷California Penal Code 288 -- Lewd or lascivious acts; penalties; psychological harm to victim. ("(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.")

¹⁸People v. Ranscht (2009) 173 Cal.App.4th 1369, 1373. ("However, Manchel's holding rests on the erroneous proposition that a person who engages in unlawful sexual intercourse with a minor under section 261.5 necessarily violates section 288, subdivision (a) or subdivision (c)(1) if the minor is less than 14-years old or if the minor is 14- or 15-years old and the offender**804 is at least 10-years older, respectively. This assumption overlooks the fact that unlawful sexual intercourse is a general intent offense ( People v. Pitts (1990) 223 Cal.App.3d 606, 876, 273 Cal.Rptr. 757) whereas convictions under section 288, subdivision (a) or subdivision (c)(1) require the specific intent to "arous[e], appeal[ ] to, or gratify[ ] the lust, passions, or sexual desires of [the offender] or the child[.]" (§ 288, subd. (a).) (See *1374 People v. Anderson (2008) 168 Cal.App.4th 135, 142, 85 Cal.Rptr.3d 262 [refusing to apply Hofsheier to defendant convicted of committing a lewd act on a child, which requires specific intent].) In People v. Pearson (1986) 42 Cal.3d 351, 356, 228 Cal.Rptr. 509, 721 P.2d 595, the California Supreme Court pointed out that an offender could commit sodomy-also a general intent offense-without simultaneously violating section 288. "For example, an act of sodomy can be committed for wholly sadistic purposes, or by an individual who lacks the capacity to form the required specific intent." ( Ibid.) Similarly, unlawful sexual intercourse committed without specific intent to "arous[e] ... the lust, passions, or sexual desires of [the offender] or the child" would violate section 261.5 without simultaneously violating section 288. (§ 288, subd. (a).) Moreover, the Manchel court ignores the possibility that the district attorney might offer, and an offender might accept, a plea to violating section 261.5 specifically to avoid the threat of mandatory sex offender registration.")

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