There are no Romeo and Juliet laws in California. This means that it is always statutory rape (PC 261.5) to have consensual sexual intercourse with someone under 18, even if you are close-in-age or a minor yourself.1
What are Romeo and Juliet Laws?
Romeo and Juliet laws say it is not always a crime to have sex with a minor. The purpose is to decriminalize teenage sex by carving out a “close-in-age” exemption, allowing normal young adults to explore their sexuality with each other consensually.
There are about 30 states that have Romeo and Juliet laws. Texas’s law states that a person:
- between the ages of 14 and 17 can consent,
- with someone within three years of their age,
- so long as the other consenting party is at least 14.2
Meanwhile, Michigan allows sexual contact (but not sexual penetration) between minors no younger than 13, and the age difference is less than five years.3
Can minors have sex if they are married?
Minors in California can legally have sex if they are married. A minor cannot legally marry in California without a court order.4
What is the age of consent in California?
The legal age of consent in California is 18 years of age (which also happens to be the year a person reaches the age of majority). Age of consent means the age at which a person can legally consent to sexual intercourse.
So in California, it would be illegal for an 18-year-old to have sex with a 17 year old, even though they are close in age. It would also be unlawful for a 17 year old to have sex with a 16 year old, even though they are both minors.5
What is statutory rape in California?
Statutory rape – called unlawful sexual intercourse in California – occurs when a person engages in consensual sex with a minor. It usually is only charged when an adult (18 or older) has sex with a minor (under 18).
If the age difference between the defendant and alleged victim is three years or less, unlawful sexual intercourse is a misdemeanor. Otherwise, it becomes a wobbler, which can be charged as either a felony or a misdemeanor.
| Statutory Rape in California | Penalties |
| The defendant is at least 21 and the minor is under 16 | Misdemeanor: Up to 1 year in jail or Felony: 2, 3, or 4 years in jail |
| The minor is under 18 and more than three years younger than the defendant | Misdemeanor: Up to 1 year in jail or Felony: 16 months, 2 years, or 3 years in jail |
| The age difference is no more than 3 years | Misdemeanor: Up to 6 months in jail and/or $1,000 |
In addition, defendants convicted of unlawful sexual intercourse face monetary civil penalties:
| Age of the minor | Civil penalties |
| The minor is less than two years younger | $2,000 |
| The minor is at least two years younger | $5,000 |
| The minor is at least three years younger | $10,000 |
| Defendant is at least 21 and minor is under 16 | $25,000 |
The purpose of the high fine amounts is to reimburse the State of California for the societal cost of teenage pregnancy.6
Can a minor face statutory rape charges for having sex with another minor?
Yes. While unusual, it is possible for the accused and the victim in a statutory rape case to both be minors. Depending on the situation, a minor charged with violating California statutory rape laws could be prosecuted in juvenile court.7
How do I fight statutory rape charges?
Over my decades of experience, I have had great success in getting unlawful sexual intercourse charges reduced or dismissed by arguing that:
- Sexual activity may have occurred, but there was no sexual intercourse; and/or
- You were falsely accused; and/or
- The police officers committed misconduct, such as a coerced confession; and/or
- Evidence shows you reasonably and actually believed the minor was at least 18 (“mistake of age” defense).
Consent is not a defense to unlawful sexual intercourse criminal charges.
Mistake of age defense
Certainly, the “mistake of age” defense is not available if the minor is obviously underage. Though this defense can and does work if I can show that:
- the minor claimed and appeared to be over 18,
- the minor had a convincing-looking fake ID showing they were over 18, and
- the minor was in a place where you had to be 18 or older (such as an adult bar or venue).
In short, if a reasonable person would have no reason to believe the minor was underage, the statutory rape charge should be dismissed.8
Common evidence
Depending on the details of the statutory rape charge I am fighting, I rely on such evidence as
- eyewitness testimony,
- alibis,
- social media postings,
- recorded communications (such as texts, DMs, and voicemails),
- forensic expert analysis, and
- any available surveillance video.
In cases that come down to “he said, she said,” it is often very difficult for the D.A. to prove guilt beyond a reasonable doubt.
Additional reading
For more in-depth information, refer to these scholarly articles:
- Romeo & Juliet: Star-Crossed Lovers or Sex Offenders? – Criminal Justice Policy Review.
- “They Aren’t Even Old Enough to Get a Driver’s License”: Variations Among Age of Consent and Romeo and Juliet Laws – Utah State University Student Research Symposium.
- All the Kids Are Doing It: The Unconstitutionally of Enforcing Statutory Rape Laws against Children & Teenagers – New England Law Review.
- Cast Me Not Away: The Plight of Modern Day Romeo and Juliet – Quinnipiac Law Review.
- Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and a Call for Reform – University of Missouri Kansas City Law Review.
Legal References
- California Penal Code 261.5 PC – Unlawful sexual intercourse with a minor; Misdemeanor or felony violation; Civil penalties. The text of the statute reads as follows:
(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.
(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.
(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).
(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
People v. Zeihm (Cal. App. 2d Dist. 1974), 40 Cal. App. 3d 1085. People v. Winters (Cal. App. 5th Dist. 1966), 242 Cal. App. 2d 711.
- Texas Penal Code 22.011.
- Michigan Penal Code 750.520e.
- See note 1. Family Code 302.
- See note 1.
- Same.
- See note 1. In re T.A.J. (1998) 62 Cal.App.4th 1350.
- See note 1.
