Penal Code § 261.5 PC prohibits statutory rape, which is having sexual intercourse with anyone other than your spouse younger than 18 years old – California’s age of consent. In court, statutory rape is more commonly called unlawful sexual intercourse with a minor.
Sexual intercourse with a minor is a crime despite that the minor willingly participated in or initiated the sexual activity. This is because minors are incapable of consenting to sex under state law.
In California, the criminal sentence for unlawful sexual intercourse with a minor turns on your age and the age of the minor, as the following table shows:
| Statutory Rape Penalties under 261.5 PC | |
| You are no more than 3 years older than the minor – 261.5(b) PC | Misdemeanor: 1 year in jail and/or $1,000 |
| You are more than 3 years older than the minor – 261.5(c) PC | Misdemeanor: 1 year in jail and/or $1,000
or Felony: 16 months, 2 years, or 3 years in jail and $10,000 |
| You are at least 21, and the minor is under 16 – 261.5(d) PC | Misdemeanor: 1 year in jail and/or $1,000
or Felony: 2, 3, or 4 years in jail and $10,000 |
Below, our California criminal defense lawyers discuss the following statutory rape topics:
- 1. Elements of 261.5 PC
- 2. Penalties
- 3. Defenses
- 4. Sex Offender Registration
- 5. Exceptions to Statutory Rape Law
- 6. Statute of Limitations
- 7. Victim Lawsuits
- 8. Related Offenses
- Additional Reading
1. Elements of 261.5 PC
California Criminal Jury Instruction “CALCRIM” 1072 spells out the elements for statutory rape. For you to be convicted of violating 261.5 PC, prosecutors must prove beyond a reasonable doubt the following three elements of the crime:
- You had sexual intercourse with another person; and
- You and the alleged victim were not married to each other at the time; and
- The alleged victim was under 18 years old at the time of the offense.
Any amount of sexual penetration of the penis into the vagina – regardless of how slight – constitutes sexual intercourse even if there is no ejaculation
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. This is different from ordinary rape, in which the victim’s lack of consent to intercourse is the key element of the crime.1
How Age is Determined
Under California law, a person is deemed to be 18 years old – and therefore no longer a minor – at 12:01 AM on their 18th birthday.2
Example: Cory is 19. His girlfriend Brianna is 17. Cory knows people who have served jail time for violating 261.5 PC 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. No crime occurred because Brianna is now considered 18.
When Both Partners Are Minors
If both you and your partner are under 18 when you have sex, you both can be charged with statutory rape! This may seem a little crazy since, in a case like this, you are technically also a “victim.”
In our experience, many prosecutors in California do not make it a priority to prosecute teenagers for having sex with other teenagers. However, that does not mean it cannot happen.3
It may be possible for criminal defense attorneys to persuade the D.A. to bring misdemeanor rather than felony 261.5 PC charges.
2. Penalties
In California, having sexual intercourse with a minor no more than three years younger than you is a misdemeanor carrying up to one year in jail and/or $1,000.5
If you are more than three years older than the minor, statutory rape is a wobbler. This means the District Attorney decides whether to bring misdemeanor or felony charges depending on your criminal history and the facts of the case.
In wobbler statutory rape cases, the misdemeanor penalties are up to one year in jail and/or $1,000. Meanwhile, the felony penalties are up to $10,000 in fines and 16 months, two years or three year in jail.
Note that if you are at least 21, and the minor is under 16, then the felony jail sentence for statutory rape is slightly harsher: Two, three, or four years.5
It may be possible to get your sentence as much as halved for good behavior (“good time credit”).
Probation
The judge may grant you probation in lieu of jail in 261.5 PC cases. Sometimes, the judge orders a “split sentence” where part of your time is done through house arrest or work release.
Typically, the judge will impose a suspended sentence where you do no time as long as you comply with your probationary terms, such as:
- Abiding by a restraining order;
- Electronic monitoring;
- Curfews;
- HIV/STD testing;
- Paying victim restitution (such as for therapy or medical bills);
- Paying court security fees;
- Counseling; and/or
- Community service.
Probation in misdemeanor cases – called “summary probation” or “informal probation” – lasts up to two years. You do not have to check in with a probation officer, though you may have to make regular court appearances.
Probation in felony cases – called “formal probation” – lasts two to five years. You are required to regularly check in with your probation officer.
Violating the terms of your probation in California may result in your probation being revoked and you being remanded into custody for the remainder of your sentence.
“Three Strikes” Law
Statutory rape is not a “strike offense” under California’s Three Strikes Law. This means you do not face enhanced penalties if later you get convicted of another felony.
Gun Rights
If you are convicted of 261.5 PC as a felony, then you would lose your firearm rights for life. However, you may be able to restore your gun rights through a California Governor’s Pardon.
Immigration Consequences
Depending on the age of the minor, statutory rape can be a crime involving moral turpitude (“CIMT”) and therefore deportable. Non-citizens should seek legal counsel to try to get the charge reduced or changed to a non-deportable offense.6
Civil Penalties for Statutory Rape
In addition to the above punishment for statutory rape in California, you may also face civil penalties (non-criminal fines) if you are 18 or older. The maximum penalties are:
- $2,000 if the minor is less than 2 years younger than you,
- $5,000 if the minor is at least 2 years younger than you,
- $10,000 if the minor is at least 3 years younger than you, and
- $25,000 if the minor was under 16, and you were over 21.7
261.5 PC sentences are in county jail, not state prison. Good behavior can halve the sentence.
3. Defenses
Here at Shouse Law Group, we have represented literally thousands of people facing charges for 261.5 PC and related sex crimes in California. In our experience, the following three defenses are very effective with prosecutors, judges, and juries at getting statutory rape charges reduced or dismissed.
Note that consent is not a defense to statutory rape because minors are not lawfully able to give consent.10
1) You Believed the Alleged Victim Was 18 or Older.
If you genuinely believed that the alleged victim was at least 18 years old, you cannot be convicted of unlawful sexual intercourse with a minor.8
This “mistake of age” defense is a more specific version of the “mistake of fact” defense. We find this strategy to be useful in situations where minors lie about their age online.
The evidence we typically rely on to support this defense are:
- Statements made by the alleged victim that they were over the age of 18,
- Their 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. Though because Todd honestly and reasonably believed the age on her fake driver’s license was accurate, he is not liable for committing statutory rape.
Therefore, when we have a client who met a minor at an adult-only venue such as a bar, we argue to the court that our client was reasonable in believing that they were over 18.
2) No Sexual Intercourse Occurred
Unless the D.A. can prove beyond a reasonable doubt there was some penetration of a vagina by a penis, then no statutory rape took place.
Note that if prosecutors fail to prove statutory rape, they may try to bring other sex charges depending on the case such as:
3) You Are the Victim of False Accusations
Much like any other California sex crime, statutory rape is an offense that is ripe for false accusations. These charges are often initiated out of anger, jealousy, revenge, or sometimes even by the minor’s parent who is unhappy with you.
As Santa Ana criminal defense lawyer John Murray9 explains,
“If you are arrested for committing 261.5 PC, remain silent. Do not try to explain your side of it to the cops or talk your way out of it. Let me handle it; that is what I am here for. A conviction can have significant consequences, which is why I will conduct a thorough investigation to help prove your side of the story and your innocence.”
To impeach the credibility of your accuser, we comb through their recorded communications (texts, voicemails, etc.) in search of prior inconsistent statements and motivations to lie. Once we present this evidence to the prosecutor, they may realize your charges are baseless and drop them.
Another defense to 261.5 PC charges is police misconduct (illegal searches or coerced confessions).
4. Sex Offender Registration
A statutory rape conviction does not require you to register as a sex offender in California. The only exception is if the judge finds that the statutory rape was due to an uncontrolled sexual compulsion (which is very rare).10
In some cases, the judge may require you to register as a sex offender as a condition of probation – but you can stop once probation ends.
5. Exceptions to Statutory Rape Law
The only time you can lawfully have sex with a minor is if you and the minor were married at the time of the sexual intercourse.
Unlike other states, California law does not recognize a “Romeo & Juliet exemption” which permits teenagers close in age to have sexual intercourse lawfully.11
6. Statute of Limitations
In California, the criminal statute of limitations for 261.5 PC cases is:
- 1 year for a misdemeanor charge and
- 3 years for a felony charge.
The fact that the statutory rape “victim” in these cases is a minor does not toll the statute of limitations.
7. Victim Lawsuits
In California, statutory rape victims can bring a sexual assault lawsuit against the alleged abuser.
Since lawsuits are civil and not criminal, victims only have to prove liability by a preponderance of the evidence. The alleged abuser can be found liable even if:
- They were found “not guilty” in a criminal jury trial or
- Criminal charges were never filed.
The court may order the payment of compensatory damages to cover:
- Medical bills,
- Psychological counseling,
- Lost wages,
- Lost earning capacity, and
- Pain and suffering.
For more information, please see our article on Lawsuits by Crime Victims in California.
The penalties for statutory rape are less severe than for rape of a minor since rape involves force, threats, or fraud.
8. Related Offenses
Lewd or Lascivious Acts with a Child
Lewd acts with a child (288 PC) is touching a child under 15 (or under 16 in some circumstances) somewhere on their body for purposes of sexual gratification.
Unlike 261.5 PC, most lewd acts with a minor (also known as child molestation) are felonies, carrying up to 8 years in California state prison. In addition, lewd acts with a minor requires sex offender registration.
Rape
Rape (261 PC) is having sexual intercourse with another person without their consent accomplished by means of threats, force or fraud. This is in contrast to statutory rape, where the question of whether the alleged victim consented is irrelevant.
Rape is always a felony, punishable by up to 8 years in the state prison. It is also a “strike” under California’s three-strikes law. In most cases, it also requires lifetime registration as a three-tier sex offender.
Forcible Sexual Penetration with a Foreign Object
California Penal Code 289 PC makes it a felony to use force or threats of force to penetrate a victim’s vagina or anus with a foreign object. Penalties include up to eight years in prison.
Additional Reading
For more information, see our related articles:
- Can an 18-year-old date a 16-year-old?
- Can a 21-year-old date a 17-year-old?
- Is it illegal for two minors to have sex?
- Is it illegal to date a minor?
- What is the difference between rape and statutory rape?
If you are suffering from sexual compulsions or disorders, you can find resources at the Association for the Treatment of Sexual Abusers (ATSA).
Legal References:
- California Penal Code 261.5 PC — Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties.
(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.
CALCRIM 1072 (“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 . . . .”). See also People v. Karsai (1982) 131 Cal.App.3d 224. People v. Jones (1988) 46 Cal.3d 585. People v. Bravo (Cal.App. 2025) . People v. Sheffield (1908) 9 Cal.App. 130 (“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.”). People v. Kemp (1934) 139 Cal.App. 48. See also CALCRIM 1070 – Unlawful Sexual Intercourse: Defendant 21 or Older. See also CALCRIM 1071 – Unlawful Sexual Intercourse: Minor More Than Three Years Younger. - 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.]”
- 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.”). See Amy Benfer, Kiss & Tell, Legal Affairs, Sept-Oct 2002.
- 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.”). See also AB 1371 (2023) (re. community service).
- 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 misdemeanor faces a maximum $1,000 fine.
- 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.”). See same, California statutory rape law, subsection (d). 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. Matter of Pedro Josue Jimenez-Cedillo 27 I&N Dec. 782 (BIA 2020).
- 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).”).
- 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.]”). See In re Harris (1993) 5 Cal.4th 813. People v. Hernandez (1964) 61 Cal.2d 529. People v. Winters (1966) 242 Cal.App.2d 711. People v. Zeihm (1974) 40 Cal.App.3d 1085. People v. Freeman (1988) 46 Cal.3d 419.
- 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.
- California Penal Code 290 PC — 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, 287, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 287, 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. California Penal Code 290.006 PC.
- See note 1.