California Statutory Rape Laws – Penal Code § 261.5 PC

Penal Code § 261.5 PC makes it a crime to have sexual intercourse with anyone under the age of 18 who is not your spouse. It is considered statutory rape even if the minor willingly participates, as the law deems minors to be legally incapable of consenting to have sex.

The legal age of consent under California state law is 18 years of age. Unlike some states, California does not have a Romeo and Juliet law or close-in-age exception. ^{1 2}

In this article, we will quote the entire language of the code section, and then provide a legal analysis below. The code section reads as follows:

261.5. (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.

Examples

Here are some examples of scenarios that can lead to statutory rape charges under this section:

• A 19-year-old female high school senior has sex with a 16-year-old male who is in several of her classes;
• A 35-year-old college professor develops a sexual relationship with a 17-year-old girl who is in one of the classes he teaches; and
• A pair of high school sweethearts who have been dating for three years have sex for the first time when he is 18 but she is still only 16.

To make matters worse, statutory rape — like other sexual offenses that people allege out of jealousy, anger, revenge, or misunderstanding — is frequently charged against innocent people. False accusations and wrongful arrests lead to a large number of bogus prosecutions.

Penalties

Statutory rape is a California “wobbler” offense.  Depending on the circumstances it may be charged as either a misdemeanor or a felony.³

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 (4) years in California state prison!

Legal defenses

Having an attorney who specializes in defending against California sex crimes is the key to safeguarding your rights and protecting your future. A good attorney knows that there are certain legal defenses that can help you beat the charges.

Two of the most helpful legal defenses are:

• You honestly and reasonably believed the minor was over 18, and
• No actual sexual intercourse took place.

Below, our California criminal defense lawyers will address the following:

• 1. When is it a crime to have sex with a minor?
• 2. What are the penalties for 261 PC?
  • 2.1. Misdemeanor penalties
  • 2.2. Felony penalties
  • 2.3. Civil penalties for California unlawful intercourse
• 3. What are the best defenses to statutory rape?
• 4. Does this crime require sex offender registration?
• 5. Are there related crimes?
  • 5.1. Lewd or lascivious acts with a child
    (Penal Code 288 PC)
  • 5.2. Rape (Penal Code 261 PC)
• 6. Are there exceptions to California’s statutory rape law?
• 7. Can the victim file a civil lawsuit?
• 8. How does SB 145 affect statutory rape laws?

If after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.

1. When is it a crime to have sex with a minor?

In order to convict you under California Penal Code 261.5, the prosecutor must prove at least three facts (otherwise known as “elements of the crime“).

These facts include: ⁴

1. that you had sexual intercourse with another person (any amount of sexual penetration, regardless of how slight, constitutes sexual intercourse even if there is no ejaculation⁵ ),
2. that you and the alleged victim were not married to each other at the time (the fact that the minor is married to someone else or used to be married does not excuse liability for this offense⁶ ), and
3. that the alleged victim was under eighteen (18) years old at the time of the offense.

It is important to note that 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.⁷

This is a striking contrast to ordinary rape under California law, in which the victim’s lack of consent to intercourse is the key element of the crime.⁸

Thus, PC 261.5 allow criminal charges to arise out of an otherwise caring and loving relationship. It is simply the age of the parties that is relevant.

Example: Sarah is a 20-year-old community college student. One of her classmates in a math class is Raphael, a 16-year-old math genius who is taking college classes even while he attends high school.

Sarah and Raphael begin studying together, and a romantic relationship develops. Eventually they start having sex. Raphael’s mother finds out, and contacts the police. Sarah may be charged with violating PC 261.5 for having sex with Raphael.

And on that note:

The age of the parties is critical to sentencing. As we discuss in Section 2 below, the potential penalties for unlawful intercourse with a minor depend on the age of the “victim” and on the age difference between them and you. Thus, the prosecutor will also be required to prove how old you and the alleged victim were when the intercourse took place.⁹

How age is determined

Under California law, a person is deemed to be one year older at 12:01am (one minute after midnight) on their birthday.¹⁰

Example: Cory is 19. His girlfriend Brianna is 17. Cory knows people who have served jail time for violating PC 261.5 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. Cory did not commit the offense because Brianna is now considered to be 18.

Minors can be charged in statutory rape cases

It is important to remember that you can be charged even if you are a minor — that is, under 18 yourself when the intercourse occurs!¹¹ This may seem a little crazy since in a case like this you are technically also a “victim”.  But it is the law.¹²

Many prosecutors in California do not make it a priority to prosecute teenagers for having sex with other teenagers. Though that does not mean it cannot happen.¹³

A case where you are also a minor will probably be tried in the California juvenile court system.

Note that the statute of limitations for PC 261.5 violations is one year for a misdemeanor and three years if it is filed as a felony.

2. What are the penalties for 261 PC?

As previously stated, California Penal Code 261.5 PC is a wobbler. That means it may be charged as either a misdemeanor or a felony.¹⁴

There are three circumstances that determine how the offense will be charged and what the potential penalties are:

1. If you are no more than three (3) years older than the alleged victim, violating PC 261.5 is always a misdemeanor.¹⁵
2. If you are more than three (3) years older than the alleged victim, the offense may be charged as either a misdemeanor or a felony.¹⁶
   AND
3. If you are twenty-one (21) or older and the alleged victim is under sixteen (16) at the time the intercourse occurs, you also face either a misdemeanor or a felony, but the potential felony penalties are steeper than in the situation described in #2, above.¹⁷

If #2 or #3 in the above list applies, then when deciding whether to charge you with a misdemeanor or a felony, the District Attorney will consider

1. the facts of your specific case, and
2. your criminal history.

Example: Troy is 19 years old but is still a senior in high school. He starts dating and has sex with Michelle, a 17-year-old who is in several of his classes. Because Troy is only 2 years older than Michelle, the age gap between them is not more than 3 years, so he can only be charged with a misdemeanor.

BUT

Example: After Michelle cheats on Troy, Troy decides to get back at her by having sex with her sister Katie, who is only 15. Because there is a 4-year age gap between Troy and Katie. That is, the age gap is greater than 3 years. So Troy could be charged with either misdemeanor OR felony.

Also note that California does not have a Romeo and Juliet law. A Romeo and Juliet law makes it legal for you to have sex with a minor as long as both of you are around the same age.

In California, however, it’s always illegal to have sexual intercourse with a minor, even if both parties are minors. Though the offense can only be charged as a misdemeanor when the age gap between you and the minor is no more than 3 years.

2.1. Misdemeanor penalties

If you are charged with misdemeanor statutory rape under any of the circumstances above, the potential penalties include:

• Informal (otherwise known as misdemeanor or summary) probation,
• A maximum one (1)-year county jail sentence, and/or
• Up to one thousand dollars ($1,000) in fines.¹⁸

2.2. Felony penalties

Penalties for felony statutory rape include:

• Probation (either informal or formal felony probation) with up to one year county jail, OR
• Sixteen (16) months, two (2) years or three (3) years in custody¹⁹ UNLESS you were 21 or older and the “victim” was under 16, in which case the potential sentence is two (2) years, three (3) years or four (4) years,²⁰
• Up to ten thousand dollars ($10,000) in fines.²¹

2.3. Civil penalties for California unlawful intercourse

In addition to the above punishment, you may also face civil penalties. These are non-criminal fines that you can be forced to pay in addition to serving time and paying criminal fines

You can be made to pay these fines only if you are 18 or older.²²

Civil penalties depend on the age difference between you and the minor. The maximum penalties are:

• Two thousand dollars ($2,000) if the so-called victim is less than two (2) years younger than you,
• Five thousand dollars ($5,000) if the “victim” is at least two (2) years younger than you,
• Ten thousand dollars ($10,000) if the “victim” is at least three (3) years younger than you, and
• Twenty-five thousand dollars ($25,000) if the “victim” was under 16, and you were over 21.²³

3. What are the best defenses to statutory rape?

There are a variety of legal defenses to a PC 261.5 charge that a skilled California sex crimes defense attorney could present on your behalf. The following are examples of some of the most common.

You honestly and reasonably believed that the alleged victim was over 18.

If you honestly and reasonably believed that the alleged victim was at least the minimum age of consent (18 years old) at the time you had sex, you cannot be convicted of violating this section.²⁴

The “mistake of age” defense is a more specific version of the general legal defense of mistake of fact. This may apply in situations where minors lie about their age online.

The types of evidence that can support this defense could include, for example:

• 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. But because Todd honestly and reasonably believed the age on her fake driver’s license was accurate, he is not liable for committing statutory rape.

If you meet a minor in a bar, it may be reasonable to believe that they are over 18.

False accusations.

Much like any other California sex crime, this is an offense that is ripe for false accusations. Statutory rape charges are often initiated out of anger, jealousy, revenge, or sometimes even by the minor’s parent who is unhappy with you.

As well-known Santa Ana criminal defense lawyer John Murray²⁵ explains,

“If you are arrested for committing PC 261.5, remain silent. Don’t try to explain your side of it to the cops or talk your way out of it. Let me handle it; that’s what I’m 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.”

Unlike California Penal Code 261 rape, consent is NOT a defense.

Under Penal Code 261, California rape laws make it a defense to the crime if the alleged victim consented to have sex.²⁶ With statutory rape, however, this is not the case.

That there was no forcible rape of a child is not a defense. Statutory rape is still considered a type of child sexual abuse even if there is consent.²⁷

The reason that statutory rape is a crime is that minors — people under the age of 18 — are legally deemed unable to give consent. This means that even if the alleged victim was a willing participant in the act and in fact wanted consensual sex, that fact won’t serve as a legal defense to the charge.

The state — correctly or not — believes that minors are too young to appreciate legally the consequences of their actions.

4. Does this crime require sex offender registration?

Luckily, the answer to this question is no.

Under the current state of the law, a statutory rape conviction does not require you to register as a sex offender in California.²⁸

However, certain related offenses do require sex offender registration, including rape and lewd and lascivious acts with a child.²⁹

5. Are there related crimes?

There are several California sex crimes related to California Penal Code 261.5:

5.1. Lewd or lascivious acts with a child (Penal Code 288 PC)

The crime of “lewd acts with a child (Penal Code 288 PC)” is touching a child 14 years or younger (and 15 years or younger under some circumstances) somewhere on their body for purposes of sexual gratification.³⁰

Unlike PC 261.5, most lewd acts with a minor (also known as child molestation) are necessarily felony offenses, carrying up to eight (8) years in California state prison.³¹

In addition, a Penal Code 288(a) lewd or lascivious acts with a child charge carries the requirement to register as a sex offender pursuant to Penal Code 290 PC.³² (Failure to register as a sex offender under Penal Code 290 is a separate felony offense. )

Prosecutors will pursue a Penal Code 288 PC charge if you commit a sexual act upon a child 14 or under (or 15 or under in certain cases) – even over their clothing – with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of yourself or the child.  Sexual intercourse is not a requirement for this offense.³⁴

Although it seems that an individual who has intercourse with a child under 14 would also violate Penal Code 288 PC, that is not necessarily the case. PC 261.5 only requires a general intent to engage in sex with a minor, whereas Penal Code 288 requires a specific intent to “arouse or gratify lust, passions, or sexual desire.”³⁵

Since statutory rape is a less serious offense than lewd acts with a child, it is often used as a plea bargain in child molestation cases to avoid the sex offender registration requirement.

5.2. Rape (Penal Code 261 PC)

You violate Penal Code 261 PC, California’s rape law when you have sexual intercourse with another person without their consent accomplished by means of threats, force or fraud.³⁶ This is in contrast to the crime of statutory rape under Penal Code 261.5 PC, where the question of whether the alleged victim consented is irrelevant.

Rape is always a felony, punishable by up to eight (8) years in the state prison.³⁷ It is also a “strike” under California’s three-strikes law.³⁸ In most cases, it also requires lifetime registration as a sex offender as a tier-three offender.³⁹

Just as with statutory rape, California rape is often charged as a result of false accusations motivated by revenge, jealousy, or a relationship gone sour. If a former girlfriend (or boyfriend) you dated while they were under 18 accuses you of rape, you may find yourself facing charges of both

• statutory rape and
• Penal Code 261 PC rape.

In this kind of situation, a good criminal defense attorney is essential. They can help you fight both charges, or, in the alternative, seek to get at least the rape charges dismissed so that you are less likely to face felony penalties and can avoid the sex offender registration requirement.

Note that California has no first degree or second degree rape.

6. Are there exceptions to California’s statutory rape law?

The only exception to California’s statutory rape law 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 lawfully have sexual intercourse.

That being said, statutory rape is only a misdemeanor if you and the minor are within three years of each other. Otherwise, statutory rape can be a misdemeanor or a felony.

Remember, solid defenses to statutory rape allegations are that you never had sexual intercourse or that you reasonably believed the minor was of age.⁴⁰

7. Can the victim file a civil lawsuit?

People who believe they have suffered damages as the result of statutory rape have the right to bring a sexual assault lawsuit in California.

You do NOT need to have been convicted in a criminal trial to be sued.

The burden of proof in a civil case is simply a preponderance of the evidence. If nine of the 12 jurors believe it is more likely than not that you did something wrong, you can be ordered to pay damages – even if

• you were found “not guilty” in a criminal jury trial or
• charges were never filed.

Damages that can be recovered from you include compensatory damages such as:

• 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.

8. How does SB 145 affect statutory rape laws?

California Senate Bill 145 (2020) does not affect Penal Code 261.5. SB 145 applies to three other offenses involving sexual conduct:

1. PC 286(b) – sodomy
2. PC 287(b) – oral copulation of a child
3. PC 289(h) or (i) – penetration by a foreign object

SB 145 gives judges the discretion not to require you – if you are convicted of the above crimes – to register as a sex offender as long as you are no more than 10 years older than the child, and the child is at least 14.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and in jurisdictions throughout California.

In Colorado? See our article on Colorado statutory rape laws.

In Nevada? See our article on “Nevada statutory rape laws (NRS 200.368)” (also known as “statutory sexual seduction laws”).

Online Resources:

Association for the Treatment of Sexual Abusers (ATSA)– ATSA offers referrals, programs and resources for those suffering from sexual compulsions and sexual disorders.

Los Angeles County Batterer’s Classes- A Court-appointed list of batterer’s classes throughout L.A. County

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