Statute of Limitations for Statutory Rape

Posted by Neil Shouse | Mar 23, 2020 | 0 Comments

The statute of limitations for statutory rape in California is either 1 year or 3 years. If the charge is a misdemeanor, it has to be filed within 1 year. If it is a felony, it has to be filed within 3 years. If it is not filed within this timeframe, the charge can be dismissed.

These limitations only apply to statutory rape charges under California Penal Code 261.5. Other sex crimes have different statutes of limitations. Some of these other laws involve sexual acts within minors, as well. This means you can be charged with a different sex crime involving a minor, even though 3 years have passed.

A recent law in California was passed to extend many statutes of limitations for sex crimes. The law allows prosecutors to file charges at any time. However, the new law did not change the limitations period for statutory rape.

girl suffering from statutory rape
The statute of limitations for statutory rape in California is either 1 year or 3 years.

What is statutory rape?

Statutory rape is the crime of having unlawful sex with a minor. In California, it is prohibited by Penal Code 261.5. It is a crime because minors cannot legally consent to have sex.

The only exception is if the couple is married at the time of the intercourse.

The age difference between the couple matters. It determines whether the offense was a felony or a misdemeanor. This determines the statute of limitations for the charge:

  • misdemeanor charges have to be commenced within 1 year, while
  • felony charges have to be commenced within 3 years.

When is it a misdemeanor?

In California, statutory rape is a misdemeanor if the intercourse was with a minor less than 3 years younger.

It is a wobbler if the minor was at least 3 years younger. It is also a wobbler if the minor was under 16 and you were at least 21.

Wobblers can be prosecuted as either a misdemeanor or a felony. The choice is within the discretion of the prosecutor. They tend to use the factors published by the California District Attorneys Association. These factors include:

  • the severity of the crime,
  • level of cooperation with law enforcement,
  • any prior offenses,
  • the defendant's age,
  • likelihood of continued criminal activity,
  • eligibility for probation, and
  • the strength of the prosecutor's case.1

If statutory rape is charged as a misdemeanor, the statute of limitations is 1 year.2

When is it a felony?

Statutory rape can be charged as a felony if:

  • the minor was at least 3 years younger than you were, or
  • the minor was under 16 and you were at least 21.

These cases are wobblers. They can be charged as a misdemeanor or a felony. If prosecutors elect to pursue felony charges, the statute of limitations is 3 years.3

What is a statute of limitations?

A statute of limitations is a law that requires a case be brought before a certain amount of time has passed.

There are statutes of limitations for both criminal and civil cases. The amount of time to bring a case depends on the type of case it is. Severe criminal cases have longer statutes of limitations than minor criminal cases.4 Certain crimes have no statute of limitations, at all.5

For criminal cases, law enforcement has to commence prosecution before the statute expires. If they do not, they will be unable to bring charges.

A statute of limitations aims to ensure that evidence is still fresh. It also lets suspects move on with their lives once the time has passed.

What does it mean to commence prosecution?

Prosecution is commenced when:

  • an indictment or information is filed,
  • the misdemeanor complaint is filed,
  • the defendant is arraigned for a felony, or
  • an arrest warrant is issued that has the information necessary for a complaint or indictment.6

Prosecutors have to do one of these things before the statute of limitations has expired. If they fail, the case cannot be brought. If prosecutors file a case in spite of the statute of limitations, the charge can be quickly dismissed.

What about the recent law changes?

California recently extended many statutes of limitations for sex crimes.7 That new law, however, does not apply to charges of statutory rape.

Senate Bill 813 was signed into law in September, 2016. It lengthened many of the statutes of limitations for sex crimes involving a minor, including:

  • rape,
  • sodomy,
  • lewd or lascivious acts,
  • continuous sexual abuse of a child,
  • oral copulation, and
  • sexual penetration.

Under Senate Bill 813, there would be no statute of limitations for these offenses. Prosecutors could file charges at any time.

However, statutory rape was not one of those offenses. The existing limitations – 1 year for misdemeanors and 3 years for felonies – were left intact.

Legal References:

  1. See M. Berwick, R. Lindenberg and J. Van Roo, “Wobblers & Criminal Justice in California: a Study into Prosecutorial Discretion,” March 20, 2010, page vii.

  2. California Penal Code 802 PC.

  3. California Penal Code 801 PC.

  4. Compare California Penal Code 802 PC (requiring nearly all misdemeanors be brought within 1 year) with 801 PC (requiring nearly all felonies be brought within 3 years) and 800 PC (providing a 6-year statute of limitations for felonies that carry more than 8 years in jail).

  5. California Penal Code 799 PC.

  6. California Penal Code 804 PC.

  7. Jazmine Ulloa, “No more statute of limitations for rape cases in California,” Los Angeles Times (September 28, 2016).

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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