California "Statutory Rape" Laws
Unlawful Sexual Intercourse with a Person Under 18
Penal Code 261.5 PC

Under California Penal Code 261.5 PC, a "statutory rape" takes place when any person engages in sexual intercourse with a person under the age of eighteen (18).1 The crime of statutory rape is also commonly referred to as "unlawful sex with a minor"...or as "unlawful sexual intercourse."

Statutory rape is a crime regardless of whether the sex was consensual...or even initiated by the minor (the supposed "victim" of the crime).2 The reality is that we live in a world where teenagers are sexually active...which means that the crime of statutory rape occurs every day, and that countless otherwise law-abiding people find themselves being prosecuted.

Here are some examples of scenarios that can lead to charges under California's statutory rape statute:

  • A 19-year-old female high school senior has sex with a 16-year-old male who is in several of her classes;
  • A 35-year-old college professor develops a sexual relationship with a 17-year-old girl who is in one of the classes he teaches; and
  • A pair of high school sweethearts who have been dating for three years have sex for the first time when he is 18 but she is still only 16.

To make matters worse, statutory rape...like other sex crimes that people allege out of jealousy, anger, revenge, or misunderstanding...is frequently charged against innocent people. False accusations and wrongful arrests lead to a large number of bogus California statutory rape prosecutions.

Penalties

The offense of statutory rape is a wobbler, which means that...depending on the circumstances...it may be charged as either a misdemeanor or a felony.3

The age difference between the defendant and the minor is one of the major factors determining how the crime is tried. If the defendant is 21 or older and the minor is under the age of 16, the penalties are likely to be most severe...and can include up to four (4) years in California state prison!

Legal Defenses

Having an attorney who specializes in defending against California sex crimes is the key to safeguarding your rights...and to protecting your future. A good attorney knows that there are certain legal defenses that can help you beat statutory rape charges.

Two of the most helpful legal defenses are:

  • You honestly and reasonably believed the minor was over 18, and
  • No actual sexual intercourse took place.
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In order to help you understand California statutory rape laws, our California sex crimes defense attorneys will address the following:

1. How Does the Prosecutor Prove that I am Guilty of Penal Code 261.5 PC Statutory Rape?
2. Penalties, Punishment, and Sentencing for Statutory Rape

2.1. Misdemeanor statutory rape penalties

2.2. Felony statutory rape penalties

2.3. Civil penalties for California unlawful intercourse

3. How Do I Fight a Penal Code 261.5 PC Statutory Rape Charge?
4. Does Statutory Rape in California Require Registration as a Sex Offender?
5. California Statutory Rape and
Related Offenses

5.1. Lewd or lascivious acts with a child
(Penal Code 288 PC)

5.2. Rape (Penal Code 261 PC)

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

You may also find helpful information in our related articles on The California Juvenile Court System; Legal Definition of a "Wobbler" in California Law; Legal Definition of a Misdemeanor in California Law; Legal Definition of a Felony in California Law; Explanation of California Probation and Probation Violations Law; Common Legal Defenses to California Crimes; Mistake of Law/Mistake of Fact; California Sex Crimes; How Sex Offender Registration Works in California; Lewd Acts with a Child California Penal Code 288; Failure to Register as a Sex Offender Under Penal Code 290 PC; Penal Code 261 PC California's Rape Law; and California's Three Strikes Law.

1. How Does the Prosecutor Prove that I am Guilty of Penal Code 261.5 PC Statutory Rape?

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 include4 :

  1. that the defendant had sexual intercourse with another person (any amount of penetration, regardless of how slight, constitutes sexual intercourse...even if there is no ejaculation5 ),
  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 someone else or used to be married does not excuse liability for this offense6 ), and
  3. that the alleged victim was under eighteen (18) years old 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...or that the alleged victim did not consent to the intercourse.7 This is a striking contrast to ordinary rape under California law, in which the victim's lack of consent to intercourse is the key element of the crime.8

Thus, 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.

Example: Sarah is a 20-year-old community college student. One of her classmates in a math class is Raphael, a 16-year-old math genius who is taking college classes even while he attends high school.

Sarah and Raphael begin studying together, and a romantic relationship develops. Eventually they start having sex. Raphael's mother finds out, and contacts the police. Sarah may be charged with statutory rape for having sex with Raphael.

And on that note...

The age of the parties is critical to sentencing. As we discuss in Section 2 below, the potential penalties for unlawful intercourse with a minor depend on the age of the "victim"...and on the age difference between him/her and the defendant. Thus, the prosecutor will also be required to prove how old the parties were when the intercourse took place.9

How age is determined

Under California law, a person is deemed to be one year older at 12:01am (one minute after midnight) on their birthday.10

Example: Cory is 19. His girlfriend Brianna is 17. Cory knows people who have gone to jail for statutory rape and is very concerned about this threat. So he and Brianna plan on waiting until she is 18 before they have sex.

Brianna's birthday is on February 2. On the night of February 1, she and Cory stay up late. Just after midnight---after the date has changed to February 2-they have sexual intercourse for the first time. Cory cannot be charged with statutory rape...because Brianna is now considered to be 18.

Minors can be charged with statutory rape

It's important to remember that you can be charged with statutory rape even if you are a minor-that is, under 18-yourself when the intercourse occurs!11 This may seem a little crazy...since in a case like this the defendant is technically also a "victim" of statutory rape himself.  But it's the law.12

Many prosecutors in California don't make it a priority to prosecute teenagers for having sex with other teenagers. But that doesn't mean it can't happen.13

A statutory rape case where the defendant is also a minor will probably be tried in the California juvenile court system.

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2. Penalties, Punishment, and Sentencing for Statutory Rape

As previously stated, California Penal Code 261.5 PC (statutory rape law) is a
wobbler. That means it may be charged as either a misdemeanor or a
felony.14

There are three circumstances that determine how the offense will be charged and what the potential penalties are:

  1. If you are no more than three (3) years older than the alleged victim, statutory rape is always a misdemeanor.15
  2. If you are more than three (3) years older than the alleged victim, the offense may be charged as either a misdemeanor or a felony.16

    AND

  3. If you are twenty-one (21) or older and the alleged victim is under sixteen (16) at the time the intercourse occurs, you also face either a misdemeanor or a felony...but the potential felony penalties are steeper than in the situation described in #2, above.17

If #2 or #3 in the above list applies...then when deciding whether to charge you with a misdemeanor or a felony, the District Attorney will consider (1) the facts of your specific case, and (2) your criminal history.

Example: Troy is 19 years old but is still a senior in high school. He starts dating and has sex with Michelle, a 17-year-old who is in several of his classes. Because Troy is only 2 years older than Michelle...i.e., the age gap between them is not more than 3 years...he can only be charged with misdemeanor statutory rape.

BUT

Example: After Michelle cheats on Troy, Troy decides to get back at her by having sex with her sister Katie, who is only 15. Because there is a 4-year age gap between Troy and Katie...that is, the age gap is greater than 3 years...Troy could be charged with either misdemeanor OR felony statutory rape.

2.1. Misdemeanor statutory rape penalties

If you are charged with misdemeanor statutory rape under any of the circumstances above, the potential penalties include:

  • Informal (otherwise known as summary) probation ,
  • A maximum one (1)-year county jail sentence, and/or
  • Up to one thousand dollars ($1,000) in fines.18

2.2. Felony statutory rape penalties

Felony penalties for statutory rape include:

  • Probation (either informal or formal) with up to one year county jail, OR
  • Sixteen (16) months, two (2) years or three (3) years in custody19 ...UNLESS the defendant was 21 or older and the "victim" was under 16, in which case the potential sentence is two (2) years, three (3) years or four (4) years,20
  • Up to ten thousand dollars ($10,000) in fines.21

2.3. Civil penalties for California unlawful intercourse

In addition to the above punishment, an individual charged with California statutory rape may also face civil penalties. These are non-criminal fines that you can be forced to pay in addition to serving time and paying criminal fines. Only adult defendants (defendants 18 and older) can be made to pay these fines.22

Civil penalties depend on the age difference between the parties. The maximum penalties are:

  • Two thousand dollars ($2,000) if the so-called victim is less than two (2) years younger than the defendant,
  • Five thousand dollars ($5,000) if the "victim" is at least two (2) years younger than the defendant,
  • Ten thousand dollars ($10,000) if the "victim" is at least three (3) years younger than the defendant, and
  • Twenty-five thousand dollars ($25,000) if the "victim" was under 16, and the defendant was over 21.23
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3. How Do I Fight a Penal Code 261.5 PC Statutory Rape Charge?

There are a variety of legal defenses to a California statutory rape charge that a skilled California sex crimes defense attorney 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.24 This legal defense is a more specific version of the general legal defense of mistake of fact.

The types of evidence that can support this defense co uld 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).
Example: Todd meets Jessica at a bar that requires patrons to present ID showing that they are 21 or older before entering. While he and Jessica are talking, he sees her order a drink at the bar, presenting a driver's license that says she is 21. Todd and Jessica eventually go home to Todd's apartment and have sex.

It turns out that Jessica is actually 16 and was using a fake ID to get into the bar and buy drinks. But because Todd honestly and reasonably believed the age on her fake driver's license was accurate, he is not liable for the crime of statutory rape.
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If someone meets a minor in a bar, it may be reasonable to believe that they are over 18.

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 is unhappy about the individual his/her child is dating.

As well-known Santa Ana criminal defense lawyer John Murray25 explains,

"If you are arrested for statutory rape, remain silent. Don't try to explain your side of 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."

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.26 With statutory rape, however, this isn't the case.27

The reason that statutory rape is a crime is because minors-people under the age of 18-are legally deemed unable to give consent. This means that even if the alleged victim was a willing participant in the act...that fact won't serve as a legal defense to a California statutory rape charge. The state-correctly or not-believes that minors are too young to appreciate legally the consequences of their actions.

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

Luckily...the answer to this question is no.

Under the current state of California law, a conviction for Penal Code 261.5 does not require one to register as a sex offender pursuant to Penal Code 290.28

However, certain related offenses do require sex offender registration, including
rape and lewd and lewd and lascivious acts with a child.29

5. California Statutory Rape and Related Offenses

There are several California sex crimes related to California Penal Code 261.5 statutory rape.

5.1. Lewd or lascivious acts with a child (Penal Code 288 PC)

The crime of "lewd acts with a child (Penal Code 288 PC)" takes place when a person touches a child 14 years or younger (and 15 years or younger under some circumstances) somewhere on his/her body for purposes of sexual gratification.30

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 (8) years in California state prison.31

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.32 (Failure to register as a sex offender under Penal Code 290 is a separate felony offense. )

Prosecutors will pursue a Penal Code 288 PC charge if you commit a sexual act upon a child 14 or under (or 15 or under in certain cases)...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.  Sexual intercourse is not a requirement for this offense.34

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...whereas Penal Code 288 requires a specific intent to "arouse or gratify lust, passions, or sexual desire."35

Since statutory rape under California Penal Code 261.5 is a less serious offense than lewd acts with a child, 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.

5.2. Rape (Penal Code 261 PC)

You violate Penal Code 261 PC, California's rape law when you have sexual intercourse with another person without their consent...accomplished by means of threats, force or fraud.36 This is in contrast to the crime of statutory rape under Penal Code 261.5 PC...where the question of whether the alleged victim consented is irrelevant.

Rape is always a felony, punishable by up to eight (8) years in the
state prison.37 It is also a "strike" under California's three strikes law.38 And it requires lifetime registration as a sex offender.39

Just as with statutory rape, California rape is often charged as a result of false accusations...motivated by revenge, jealousy, or a relationship gone sour. If a former girlfriend (or boyfriend) you dated while s/he was under 18 accuses you of rape...you may find yourself facing charges of both statutory rape and Penal Code 261 PC rape.

In this kind of situation, a good criminal defense attorney is essential. S/he can help you fight both charges...or, in the alternative, seek to get at least the rape charges dismissed so that you are less likely to face felony penalties and can avoid the sex offender registration requirement.

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If you or loved one is charged with Penal Code 261.5 PC statutory rape and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

To learn about Nevada statutory rape laws, go to our article on "Nevada statutory rape laws" (also known as "statutory seduction laws").

Online Resources:

Association for the Treatment of Sexual Abusers (ATSA)-
ATSA offers referrals, programs and resources for those suffering from sexual compulsions and sexual disorders.

Los Angeles County Batterer's Classes-
A Court appointed list of batterer's classes throughout L.A. County

Legal References:

1 California Penal Code 261.5 PC -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [California statutory rape law]. ("(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.")

2 See same, California statutory rape law. ("(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.")

3 See same, California statutory rape law.

4 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 1072 - Misdemeanor Unlawful Sexual Intercourse: Minor Within Three Years of Defendant's Age [Misdemeanor Statutory Rape]. ("To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant had sexual intercourse with another person; 2 The defendant and the other person were not married to each other at the time of the intercourse; AND 3 At the time of the intercourse, the other person was under the age of 18 . . . .")

5 See same, Misdemeanor Statutory Rape. ("Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]")

6 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.")

7 CALCRIM 1072 -- Misdemeanor Statutory Rape. ("[It is not a defense that the other person may have consented to the intercourse.]")

8 See California Penal Code 261 PC - Rape defined.

9 CALCRIM 1072 -- Misdemeanor Statutory Rape. ("To prove that the defendant is guilty of this crime, the People must prove that: . . . 3 At the time of the intercourse, the other person was under the age of 18 but not more than three years (younger/older) than the defendant.")

See also CALCRIM 1070 - Unlawful Sexual Intercourse: Defendant 21 or Older. ("To prove that the defendant is guilty of this crime, the People must prove that: . . . 3 The defendant was at least 21 years old at the time of the intercourse; AND 4 The other person was under the age of 16 years at the time of the intercourse.")

See also CALCRIM 1071 - Unlawful Sexual Intercourse: Minor More Than Three Years Younger. ("To prove that the defendant is guilty of this crime, the People must prove that: . . .3 At the time of the intercourse, the other person was under the age of 18 and more than three years younger than the defendant.")

10 CALCRIM 1072 -- Misdemeanor Statutory Rape. "[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]"

11 In re T.A.J. (1998) 62 Cal.App.4th 1350, 1352-53. ("Penal Code section 261.5, subdivision (b), makes it a misdemeanor for "any person" to have sexual intercourse with a minor who is no more than three years older or younger than the perpetrator. Does this statute infringe a constitutional privacy right of minors to engage in consensual sexual intercourse? Is the statute unconstitutional as applied to appellant who was a minor himself at the time of the alleged offense, and therefore, an individual within the class of persons protected by the statute? In affirming the finding of the trial court determining appellant to be a ward of the court, we answer both questions in the negative.")

12 See same.

13 See Amy Benfer, Kiss & Tell, Legal Affairs, Sept-Oct 2002.

14 California Penal Code 261.5 PC -- California statutory rape law. ("(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.")

15 See same, California statutory rape law, subsection (b).

16 See same, California statutory rape law, subsection (c).

17 See same, California statutory rape law, subsection (d).

18 California Penal Code 672 -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("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.")  This is why an individual convicted of California Penal Code 261.5 statutory rape as a misdemeanor faces a maximum $1,000 fine.

19 California Penal Code 261.5 PC -- California statutory rape law, subsection (c).

See also California Penal Code 1170(h) - Determinate sentencing. ("(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.")

20 See same, California statutory rape law, subsection (d).

21 California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("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.")  This is why an individual convicted of California Penal Code 261.5 statutory rape as a felony faces a maximum $10,000 fine.

22 California Penal Code 261.5 PC -- California statutory rape law. ("(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).")

23 See same, California statutory rape law, subsection (e).

24 CALCRIM 1072 -- Misdemeanor Statutory Rape. ("[The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.]")

25 Santa Ana criminal defense lawyer John Murray represents clients in criminal proceedings in all locations of the courts of Los Angeles County and Orange County.

26 CALCRIM 1000 - Rape . . . by Force, Fear, or Threats. ("To prove that the defendant is guilty of this crime, the People must prove that: . . .  3 The woman did not consent to the intercourse; . . . .")

27 CALCRIM 1072 - Misdemeanor Statutory Rape. ("[It is not a defense that the other person may have consented to the intercourse.]")

28 California Penal Code 290 -- Sex Offender Registration 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, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261 [California rape statute]...") Penal Code 261.5 PC, California's statutory rape law, is not on this list.

29 See same.

30 California Penal Code 288 PC - Lewd or lascivious acts; penalties; psychological harm to the victim [may be charged instead of or along with California statutory rape].

31 See same.

32 California Penal Code 290 -- Sex Offender Registration 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, . . . .")

33 California Penal Code 290.018 PC - Penalties for [failure to register as a sex offender]. ("(a) Any person who is required to register under the Act based on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of the act is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year. (b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years. (c) If probation is granted or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the person serve at least 90 days in a county jail. The penalty described in subdivision (b) or this subdivision shall apply whether or not the person has been released on parole or has been discharged from parole.")

34 California Penal Code 288 PC - Lewd or lascivious acts; penalties; psychological harm to the victim [may be charged instead of or along with California statutory rape].

35 People 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 [statutory rape] 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 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 [California's statutory rape law] specifically to avoid the threat of mandatory sex offender registration.")

36 See Penal Code 261 PC  -- Rape defined. Compare to Penal Code 261.5 PC, California's statutory rape law, which does not require lack of consent as an element.

37California Penal Code 264 - Rape, punishment.

See also Penal Code 12022.7 PC - Great bodily injury.

38California Penal Code 667.5 PC. ("(c) For the purpose of this section, "violent felony" shall mean any of the following . . . (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.")

39 California Penal Code 290 -- Sex Offender Registration Act.  California statutory rape is not one of the crimes requiring registration, but Penal Code 261 PC rape is.

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