Many states have adopted "Romeo and Juliet" laws, designed to prevent the prosecution of young couples engaged in consensual sexual activities when their ages fall within a close range.

California has no Romeo and Juliet laws, meaning it's statutory rape to have sexual intercourse with a minor under the age of 18.

California's laws stand out from the majority of states as they do not include a 'Romeo and Juliet' clause. This means that even if both participants are minors, consensual sex is considered statutory rape under Penal Code 261.5 PC.

The unique absence of such a common law in California underscores the severity of the state's legal stance, which primarily aims to prevent teen pregnancies.

Simply put, there are no Romeo and Juliet laws in California. Thus, it is always statutory rape to have consensual sexual intercourse with someone under 18, even when you are close in age or a minor yourself.

Minors are allowed to have sex if they are married legally, but a minor cannot legally marry in California without a court order. The legal age of consent in California is 18 years of age, meaning this is when someone can legally consent to sexual intercourse.

This means it's illegal for an 18-year-old boy to engage in sexual intercourse with a 17-year-old girl, even though they are very close in age. Likewise, it's illegal for a 16-year-old to have sex with a 15-year-old, even though they are both minors.

However, as noted, while technically illegal, it's pretty rare for the district attorney to file criminal charges against close-in-age minors for having consensual sex with each other. Statutory rape charges could be prosecuted in juvenile court.

Quick Facts

• Named after Shakespeare's ill-fated teen couple, Romeo and Juliet laws provide legal protection to teenagers who engage in consensual sex with peers close to their age, exempting them from severe statutory rape charges that would otherwise apply.
• In California, the age of consent is firmly set at 18 years old.
• Romeo and Juliet laws essentially say it's not always a crime to have sex with a minor.
• The rationale is to differentiate between exploitative sexual relationships and those that occur between peers in a close age bracket.
• Many states have adopted these laws, recognizing the nuances of teenage relationships and aiming to avoid unjustly penalizing what can be considered normal adolescent behavior.
• The purpose is to decriminalize teenage sex by making a "close-in-age" exemption, which allows young adults to have consensual sex.
• California maintains a more stringent approach when it comes to the age of consent and sexual relations involving minors.
• Although consenting teens are rarely prosecuted for their sexual relationships, under PC 261.5, any sexual intercourse involving an individual under 18 is considered statutory rape, irrespective of the minor's consent or the minor's age relative to their sexual partner.
• If both participants are teenagers, any act of sexual intercourse is technically illegal if either party is under 18. This holds regardless of the nature of their relationship, their age difference, or mutual consent.
• PC 261.5 makes a clear exception for teenagers who are legally married. In the context of a legal marriage where at least one of the spouses is a minor, statutory rape charges would not apply.

Legal Implications

The absence of a Romeo and Juliet law in California puts young individuals at risk of significant legal consequences if they engage in sexual activities before reaching the age of consent.

Even seemingly innocuous teenage romances could result in statutory rape charges if they involve sexual intercourse and if one or both parties are under 18.

Charges of statutory rape in California are generally treated as misdemeanors when the age difference between the consenting parties is less than three years; however, if the age difference is greater, the charge can be escalated to a felony. If both parties are under 18, the charges would be adjudicated through the juvenile court system.

Statutory rape charges in California, even when treated as misdemeanors, can have serious implications for a young individual's life.

These can include potential jail time, probation, and a criminal record. It's crucial for teens and their guardians to be aware of these risks and to seek competent legal guidance if the relationship results in criminal charges. This information will help them feel informed and prepared.

What are the Penalties? 

As noted, under Penal Code 261.5 PC, statutory rape (unlawful sexual intercourse) occurs when an adult over 18 engages in consensual sex with a minor. The penalties for this offense are as follows:

• If the age difference between the defendant and the alleged victim is three years or less, unlawful sexual intercourse is a misdemeanor that carries up to six months in county jail and a fine of up to $1,000.
• If the minor is under 18 and over three years younger than the defendant, it's a 'wobbler' that can be charged as either a misdemeanor or a felony, depending on the circumstances. This means that the severity of the charge is not fixed and can vary based on the specific details of the case. A misdemeanor carries a penalty of up to one year in jail. A felony, on the other hand, carries a more severe sentence, ranging from 16 months to two or three years in jail. The decision to charge as a misdemeanor or a felony is at the discretion of the prosecutor and is based on factors such as the age difference between the parties and the nature of the relationship.
• It's also a wobbler if the defendant is at least 21 and the minor is under 16. A felony carries a sentence of two, three, or four years in jail.

Additionally, defendants convicted of unlawful sexual intercourse can face monetary civil penalties based on the age difference. For example, if the minor is less than two years younger, the civil fine is $2,000.

If the defendant is at least 21 years old and the minor is under 16 years old, the civil fine is significantly higher at $25,000. These civil penalties are in addition to any criminal penalties and are designed to provide compensation to the victim and deter future violations of the law.

What are Common Defenses? 

Since the legal concept behind statutory rape is that minors under 18 are not legally able to consent, one cannot use mutual consent as a defense against charges of statutory rape. However, our experienced California defense lawyers can still implement several strategies to counter the charges, such as the following: 

• Mistake of Age. We may argue that the defendant reasonably believed the minor was 18 years old at the time of the encounter. If the minor in question is obviously underage, the mistake of age defense will not work. However, if the minor is near enough to the age of consent that a reasonable person could have made a mistake, or if the minor clearly misled the defendant, then the defense can hold up in court. Usually, we must present evidence of the deception, such as a fake ID or evidence that the minor was present in an adult-only location.
• No Sexual Intercourse. Statutory rape is defined as sexual intercourse. Under the law, sexual intercourse is defined as sexual penetration involving the genitalia, no matter how slight. We may argue that even if sexual acts occurred, there was no sexual penetration.
• False Accusation. In some cases, a minor may falsely accuse someone of statutory rape as a form of revenge or to avoid getting into trouble with their parents. An experienced attorney can help gather evidence and testimony to discredit the accuser's claims.

Contact our law firm for more information. Eisner Gorin LLP has offices in Los Angeles, CA.

Related Content:

• Fight PC 261.5 Charges
• Penal Code 261.5 PC
• CA Family Code 302
• People v. Zeihm (1974)
• Unlawful Sexual Intercourse