Yes, so long as the relationship is not sexual. If they have sexual intercourse, the 21-year-old can face criminal charges for statutory rape if they are not married. The penalties for statutory rape carry up to 3 years in jail. They can also land in deeper legal trouble if they drink or do drugs together.
The prohibition on sexual activity makes California different from many other states. California does not have a “Romeo and Juliet” law. This law allows minors of similar ages to engage in consensual sexual activity.
What is the age of consent in California?
Anyone under the age of 18 cannot legally consent to sexual intercourse. This applies to both men and women. The law does not recognize a minor's intent as legal consent, even if it is genuine. In the eyes of the law, anyone under the age of consent is too young for their consent to count.
Example: Paul and Mary have dated throughout high school. Paul is 18 and Mary is 17 when she offers to have sex with him. Because she is still underage, this is not consent.
Is it illegal to have sex with someone who is under the age of consent?
Yes. Having sex with someone who is under the age of consent is a crime. In California, it is statutory rape. It is considered rape because it cannot be consensual. The young age of one of the people involved prevents them from consenting.
In California, statutory rape involving actors 4 years apart is a “wobbler.” It can be charged as either a felony or as a misdemeanor. The prosecutor decides what charge to file. Their decision is based on the facts of the case. Only the older sexual partner will be charged. The younger partner is seen as the “victim.”
What are the penalties for statutory rape?
The penalties of a conviction for statutory rape depend on whether it is being charged as a felony or a misdemeanor. The penalties also depend on the ages of the defendant and the alleged victim.
If charged as a felony against someone who is 21 for conduct with a 17-year-old, the penalties include:
- 16 months, 2 years, or 3 years in jail, and/or
- Up to $10,000 in fines.1
If the 21-year-old is charged with a misdemeanor, the penalties are:
- Up to 1 year in jail, and/or
- Up to $1,000 in fines.2
In addition to fines and jail time, a civil penalty can also be issued. The amount of this penalty depends on the ages of the parties involved. When they are 21 and 17, the civil penalty is $10,000.3 The penalty will also only be assessed against the 21-year-old.
However, a conviction for statutory rape does not require sex offender registration.4
What is the legal definition of sexual intercourse?
In California, sexual intercourse means any act of penetration of the vagina or genitalia by the penis. Ejaculation is not required.5
The degree of penetration does not matter. It can be very slight and still amount to sexual intercourse.6
Example: Wearing nothing but underwear, Mary sits on Paul's lap. Even though Paul cannot penetrate her, fully, it is still sexual intercourse.
Can there be other repercussions?
Certain adults can face non-criminal penalties for dating a 17-year-old. For example:
- teachers can be suspended or fired for dating a student,
- registered sex offenders can break the terms of their supervision for being near someone underage, and
- probationers can violate the terms of their supervision by dating a minor.
Additionally, a 21-year-old can break other laws in the course of dating a 17-year-old. These include:
- furnishing alcohol to a minor (California Business & Professions Code 25658 BP),
- furnishing marijuana to a minor (California Health and Safety Code 11361 HS), and
- oral copulation with a minor (California Penal Code 288a PC).
Would being married change anything?
Yes. Sexual intercourse between spouses is not statutory rape. If the partners are lawfully married, the 21-year-old would not face statutory rape charges.
In California, there is no minimum age for marriage. Minors who want to get married need:
- parental consent, and
- a court order.
California Penal Code 261.5(c) and California Penal Code 1170(h).
California Penal Code 261.5(c).
California Penal Code 261.5(e)(1)(C).
California Penal Code 290.
California Criminal Jury Instructions (“CALCRIM”) 1072.