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Does California Have a Romeo and Juliet Law?

Posted by Neil Shouse | Jul 30, 2019 | 0 Comments

romeo and juliet law california

No, California does not have a Romeo and Juliet law. In California, it is illegal for anyone to engage in sexual intercourse with a minor. Even another minor.

A Romeo and Juliet law says it is not always a crime to have consensual sex with a minor. But the guidelines are very specific. Texas, for example, has a Romeo and Juliet law. It 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.

Age of consent means the age at which a person can legally consent to sexual intercourse.

In California, statutory rape is referred to as unlawful sexual intercourse. It occurs when a person engages in consensual sex with a minor. It's normally only charged when an adult has sex with a minor. An adult is a person over 18. Depending on the age of the accused it can be charged as a felony or a misdemeanor.

Under Penal Code 261.5 any person who engages in sexual intercourse with:

  • a minor less than three years younger (or older) is guilty of a misdemeanor,
  • a minor more than three years younger is guilty of a misdemeanor OR a felony,
  • a minor under 16 when the accused is 21 or older is guilty of a misdemeanor OR a felony.

The purpose of statutory rape laws is to help prevent teenage pregnancies.

There are several defenses to a statutory rape charge:

  • no sexual intercourse occurred, OR
  • there was an honest belief the minor was over 18.

What is a Romeo and Juliet Law?

Romeo and Juliet laws say it is not always a crime to have sex with a minor. The purpose is to decriminalize teenage sex. Such laws generally allow someone over 14 to consent to sex, but only with someone who is no more than three years older. California does not have a Romeo and Juliet law.

In California, it is illegal for anyone to engage in sex with a minor. Even another minor. The only exception is if the parties are married. A minor cannot legally marry in California without a court order. See Family Code 302.

Age of consent means the age at which a person can legally consent to sexual intercourse. There is no age of consent in California. A person over 18 is an adult, a person under 18 is a minor.

What is Statutory Rape or Unlawful Sexual Intercourse in California?

Statutory rape occurs when a person engages in sexual intercourse with someone under 18. It is usually charged when an adult has sex with a minor but can also occur between two minors.

California statutory rape laws (unlawful sexual intercourse) look at the age of the accused and the age of the victim.

Under Penal Code 261.5(b), a person who engages in sexual intercourse with a minor:

  • no more than three years younger or older,
  • is guilty of a misdemeanor.

The punishment could be up to six months in jail and a $2,000 fine.

Under Penal Code 261.5(c), a person who:

  • engages in sexual intercourse with a minor under 18,
  • who is more than three years younger,
  • is guilty of a misdemeanor or a felony.

The punishment could be up to:

  • one-year jail for a misdemeanor,
  • three years jail for a felony,
  • a $10,000 fine.

Under Penal Code 261.5(d), a person who is 21 or older and:

  • engages in sex with a minor under 16,
  • is guilty of a misdemeanor or a felony.

The punishment could be up to:

  • one-year jail as a misdemeanor,
  • four years jail as a felony,
  • a $25,000 fine.

The purpose of the high fine amounts is to reimburse the State of California for the societal cost of teenage pregnancy.

Are There Defenses to Statutory Rape Charges?

There are several defenses to a statutory rape charge. An accused could claim:

  • no sexual intercourse occurred,
  • mistake of age (belief the minor was over 18).

The mistake of age defense can only be used if the accused reasonably and actually believed the other person was over 18. There must be evidence to show the reasonable and actual belief existed.

For EXAMPLE:

  • the minor claimed and appeared to be over 18,
  • the minor had ID showing he or she was over 18,
  • the minor was in a place where you had to be 18 or older (adult bar or venue).

Please note that if the person is obviously a minor the mistake of age defense is not available.

Can a Minor be Charged with Statutory Rape in California for Sex with Another Minor?

Yes. It is a crime in California for anyone to have sexual intercourse with a minor. While unusual, it is possible for the accused and the victim to both be minors. See In re T.A.J. (1998) 62 Cal.App.4th 1350.

Please note that a minor charged with statutory rape would appear in juvenile court.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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