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What is the Legal Age of Consent in California?

Posted by Dmitry Gorin | Mar 16, 2024

The legal age of consent in the state of California is 18 years old, which is when the law deems someone old enough to consent to have sex. This means it's a crime to engage in sexual activity with any person under 18. In other words, if you have sex with a minor, you could face serious criminal charges, such as statutory rape, under California Penal Code 261.5 PC. 

PC 261.5 statutory rape is “unlawful sexual intercourse is the act of sexual intercourse with a minor who is not the perpetrator's spouse. A minor is someone under the age of 18 years.

Legal Age of Consent in California

Sexual intercourse is described as any sexual penetration, even slight, of the vagina by the penis, and ejaculation is not required. It's important to understand that it does not matter if the sex was consensual or if the minor initiated the sexual activity. You are prohibited by law from having sex with anyone under 18.  

Many states have safe harbor provisions called “Romeo and Juliet Laws,” which say that two people who are close in age with a committed relationship before one turns 18 can lawfully engage in sexual activity. 

California, however, has not passed any such safe harbor provision.  More than half of U.S. states place the age of consent at 16. While it's rarely prosecuted, it's still technically a crime if two people under the age of 18 have consensual sex.

California lawmakers decided that 18 is the universal age when all young people can make informed decisions about their sexual activity. Our California criminal defense attorneys will review this topic further below.

Why Is the Purpose for the Age of Consent?

The age of consent is designed to protect young people from being taken advantage of by adults. By setting an age of consent, there is an acknowledgment that there is a point of maturity before which young people cannot make wise decisions about sex. 

Minors don't have the life experience or brain development to understand the consequences of their actions. 

Even if the young person gives verbal consent to sex or initiates it, the law says they are not allowed to do so. It will be considered coerced or manipulated if you have sexual intercourse with a minor. 

The age of consent laws are supposed to deter adults from pursuing underage sex partners because they are not typically mature enough to make intelligent and informed decisions about the physical and emotional risks of having sex.

What Are the Penalties for Statutory Rape in California? 

Violating the age of consent can often result in charges of PC 261.5 statutory rape, which is described as having sexual intercourse with somebody under the age of 18. 

This crime is a wobbler that can be charged as a misdemeanor or a felony. The primary factor in deciding how to charge PC 261.5 is the age difference between the perpetrator and the alleged victim.

If you are no more than three years older, then statutory rape will always be charged as a misdemeanor that carries: 

  • up to one year in county jail,
  • a fine of up to $1,000,
  • summary probation

If you are more than three years older than the victim, or 21 years old or older, and the victim is under 16, statutory rape could be charged as a felony that carries: 

  • up to four years in state prison,  
  • a fine of up to $25,000,
  • formal felony probation.

A misdemeanor or felony statutory rape conviction will not require sex offender registration under Penal Code Section 290, but you could also face civil penalties.

What is the Marriage Exception?

There is an exception to the age of consent rule in California. PC 261.5 statutory rape law says "with a person who is not the perpetrator's spouse, if the person is a minor."  

This means that if the two people were legally married, it would not be considered statutory rape, even if one or both spouses are below the age of consent.
In California, there is no minimum age for marriage. Marrying a minor is legal if the parents consent to it and there is a corresponding court order.

What Are the Best Legal Defenses?

If you have been accused of statutory rape, the issue of the age of consent is as important. Common legal defenses are discussed below.

Perhaps we can argue that you reasonably believed the other person was above the age of consent. Maybe they told you they were over 18, and you had no reason to think they were lying. In other words, you didn't willfully violate the age of consent law.

Legal Defenses for Statutory Rape

This argument is one of the most common defenses. We need to show that you believed they were an adult at the time of sexual intercourse. A good-faith belief that the alleged victim was over 18 is a defense to statutory rape.  

Perhaps their clothing and style of dress made them appear older. Perhaps their makeup and overall appearance gave the impression that they were adults. Maybe you met them in a place where only adults can enter, such as a bar.

Perhaps we can argue that the statutory rape accusations are false and that the accuser is motivated by anger or jealousy after a recent relationship breakup. 

If you or a family member were arrested and charged with a sex crime involving a minor, you should contact our law firm to review the details and legal options. Through a process called prefiling negotiation, we might be able to negotiate with law enforcement detectives and the prosecution to avoid the formal filing of charges (DA reject)

Eisner Gorin LLP is based in Los Angeles County, California. Contact us for a case evaluation via phone or fill out the contact form.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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