The term age of consent refers to the age at which the law deems people old enough to consent to have sex. In California, the legal age of consent is 18 years old. This means that it is a crime for anyone, regardless of their age, to have sexual intercourse with a person age under the age of 18.
Having sex with a minor can result in prosecution for a crime – typically for statutory rape, per Penal Code 261.5.
The crime of statutory rape is a California “wobbler” offense. This means that the crime can be charged as either
The offense can be punished by up to four years in jail or prison.
No “Romeo & Juliet Law” in California
Note that California does not have a Romeo and Juliet law. Romeo and Juliet laws prevent the prosecution of persons who engage in consensual sexual activity when:
- both parties are very close in age to one another, and
- both are below the age of consent.
There is one exception where a minor can legally have sexual intercourse with an adult. This is when the two parties are lawfully married.
Other Possible Charges for Sex With a Minor
A charge related to statutory rape is the charge of lewd acts with a minor child, under Penal Code 288. PC 288 defines a “lewd act with a minor child” as either:
- touching a child under 14 years old for sexual purposes, or
- causing a child under 14 years old to touch him/herself or someone else for a sexual purpose.
PC 288 also applies to cases where the minor child is 14- or 15 years old if the defendant is at least 10 years older than the child.
Depending on the facts of a case, a conviction of lewd acts with a minor can lead to one year in county jail to life in prison.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is the “age of consent” in California?
- 2. What is statutory rape, per Penal Code 261.5?
- 3. Does statutory rape in California require registration as a sex offender?
- 4. Does California have a “Romeo and Juliet” law?
- 5. Is there any exception where a minor can have sexual relations with an adult?
- 6. Is it legal for an adult to date a minor in California?
- 7. Are there any legal defenses to statutory rape charges?
- 8. What is California Penal Code 288 – lewd acts with a minor child?
1. What is the “age of consent” in California?
18 years of age. Under California law, a person must be at least 18 years of age in order legally to have sex with another person to whom he or she is not married. Having sex with a person under the legal age of consent will subject a person to criminal liability.
Also note that if a person is 18 years of age or older, and he/she has sexual intercourse with a minor, that person breaks the age of consent law and can be prosecuted for a crime – typically for statutory rape, per Penal Code 261.5.
“Sexual intercourse” means any sexual penetration, no matter how slight, of the vagina (“vaginal intercourse”) or genitalia by the penis. Ejaculation is not required.1
Age of consent laws are meant to deter adults from seeking out underage sex partners. This is because children are generally not mature enough to make intelligent and informed decisions regarding the physical and emotional risks of having sex.
The age of consent varies state by state from 16 to 18 years of age across the U.S.
2. What is statutory rape, per Penal Code 261.5?
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 18.2
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).3
A statutory rape case is a California “wobbler” offense. This means that the crime can be charged as either a misdemeanor or a felony depending on the facts of the case.4
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.
In such a case they can include up to four years in the California state prison.
3. Does statutory rape in California require registration as a sex offender?
A statutory rape charge, or a conviction of the same, does not require sex offender registration under California Penal Code 290 PC.5
Certain related offenses, though, do require the defendant to be on the sex offender registry, including:
- rape, per Penal Code 261, and
- lewd acts with a child, per Penal Code 288.
Now with the passing of California Senate Bill 145 (2020), judges may waive the sex registration requirement for certain defendants convicted under the following penal code subsections if the child was a 14-year-old (or older) and within 10 years of age of the defendant:
- PC 286(b) – sodomy
- PC 287(b) – oral copulation of a child
- PC 289(h) or (i) – penetration by a foreign object
SB 145 is geared to close-in age LGBT youth who have consensual oral sex or anal sex. Opponents of the new law claim it promotes pedophilia and sexual abuse.
4. Does California have a “Romeo and Juliet” law?
California does not have a Romeo and Juliet law. “Romeo and Juliet” laws are also referred to as “close in age exemptions.” The laws prevent the prosecution of young people who engage in consensual sex acts when:
- both parties are very close in age to one another, and
- both are below the age of consent.
An example here is when two people engage in consensual sex and both are 17 years old, or one is 16 years old and the other is 17.
Since there is no Rome and Juliet law in California, it is possible for two people, both under the age of 18, to be prosecuted for statutory rape if they engage in sexual intercourse.
5. Is there any exception where a minor can have sexual relations with an adult?
There is one exception where a minor can have sexual intercourse with an adult. This is when the two parties are married.
Penal Code 261.5a states:
“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.”
(emphasis added). The language, “not the spouse of the perpetrator,” means that no statutory rape charges will be filed if:
- there is consensual sex between two parties,
- one or more of the persons is below the age of 18, and
- the two parties are lawfully married.
Note that California is one of just a few states that does not have a minimum age for marriage. If a minor though decides to marry, that person must obtain parental consent and a court order prior to the marriage.
6. Is it legal for an adult to date a minor in California?
While in general, it is legal for an adult to date a minor, it is typically unwise for this to happen.
And, it is illegal for an adult to date a minor if the adult:
- has a criminal record,
- is a sex offender, or
- is a teacher or in a similar position of trust or authority.
Please also note that, based on California law, it is illegal for an adult to do any of the following with a minor he is dating:
- have sex,
- purchase for or share alcohol or cigarettes,
- bring the minor to an R-rated movie, and
- show any pornography.
7. Are there any legal defenses to statutory rape charges?
There are three common legal defenses to any accusations of statutory rape. These are:
- falsely accused – which means the alleged victim misidentified the defendant or lied,
- age of consent – which means both parties that engaged in sexual intercourse were 18 years of age or older, and
- no sexual intercourse – which means that while two persons under 18 may have had an intimate encounter, they did not engage in “sexual intercourse.”
Note that consent is not a defense to statutory rape allegations.6 It is also not a defense that the defendant believed the child was of age.7
In any case, the district attorney has the burden to prove guilt beyond a reasonable doubt. As long as prosecutors fail to meet this burden, the charge should be dismissed.
8. What is California Penal Code 288 – lewd acts with a minor child?
Penal Code 288 is the California statute that makes it a sex crime for a person to engage in a lewd act with a minor child who is:
- under age 14 years old; or
- 14- or 15 years old and the defendant is at least 10 years older than the child.
The statute defines a “lewd act with a minor child” as either:
- touching a child for sexual purposes, or
- causing a child to touch him/herself or someone else for a sexual purpose.8
Technically, this section applies when the victim is anyone under age 16.9 But because most prosecutions under this section involve children under 14, this crime is often referred to as:
- lewd acts with a child under 14,
- lewd acts on a minor under 14, or
- acts of lewd and lascivious conduct.
The penalties for a violation of PC 288 depend on a combination of factors, including:
- the age of the child,
- whether the lewd act was accomplished by force, violence, duress, or threats,
- whether there was a pattern of lewd acts, and
- if the child was 14 or 15, the age of the defendant.
Depending on the facts of the case, a conviction of lewd acts with a minor can lead to:
- imprisonment in the county jail for up to one year, or
- up to life in the California state prison.
For additional help…
If you or someone you know has been accused of having unlawful sexual intercourse with a minor, we invite you to contact us for a free consultation. We can be reached 24/7.
To learn about the age of consent laws in Nevada, please see our article on “Age of Consent” Laws in Nevada (NRS 200.364). To learn about the age of consent laws in Colorado, please see our article on Age of Consent in Colorado.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1072.
- California Penal Code 261.5 PC. See also People v. Hernandez (1964) ; People v. Tobias (2001) .
- See same.
- See same; also see our article on sexual assault / sexual battery (PC 243.4).
- California Penal Code 290 PC.
- See, for example, People v. Soto, (2011) 51 Cal. 4th 229, 245 P.3d 410.
- See People v. Olsen, (1984) 36 Cal. 3d 638, 205 Cal. Rptr. 492, 685 P.2d 52 (1984).
- California Penal Code 287 PC.
- California Penal Code 288c1 PC.