Call Today! Free Immediate Response 877-781-1570


How Can I Fight Statutory Rape Charges?

Posted by Dmitry Gorin | Aug 06, 2021

Review of PC 261.5 Statutory Rape Charges and Best Legal Defenses

By definition, rape involves having sexual intercourse with someone without their consent. In California, 18 is the age of consent, meaning anyone under age 18 is not considered legally old enough to give their full consent to sexual activity.

How Can I Fight Statutory Rape Charges in California?
PC 261.5 statutory rape is defined as having sexual intercourse with someone under the age of 18.

Thus, if you're accused of engaging in sexual relations with someone under 18, regardless of your age, you may be charged with statutory rape defined under California under Penal Code 261.5 PC.  

These laws regarding statutory rape are both complex and convoluted because it typically refers to both parties giving consent to have sex.

Thus, as noted, it's important to remember minors are not allowed to give consent and it doesn't matter if they initiated the sexual activity.

The exception is if the accused and the minor were legally married when the sexual activity occurred.

Put simply, PC 261.5 statutory rape laws make it a crime to have sex with anyone who is under the age of 18, but not all prosecutions are the same.

If you're charged with this sex crime, the following information from our Los Angeles criminal defense lawyers should help you understand the nature of what you're charged with and how to be prepared for what's ahead.

Overview of Statutory Rape in California

Under Penal Code 261.5 PC, statutory rape is defined as:

  • “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.”

By California law, the determining factor as to whether statutory rape occurred is the age of the victim.

The determining factor as to the severity of the crime (i.e., misdemeanor or felony) is the age difference between the two parties.

Unlike many states, California does not have a Romeo and Juliet law or close-in-age exception to be charged.

Thus, under the current legal definitions, you could be charged with statutory rape even if:

  • the act of sex was consensual;
  • the act was initiated by the minor; or
  • you are a minor yourself.

Regarding the third point, California law doesn't consider the age of the perpetrator when determining whether statutory rape occurred—only the age of the victim.

Statutory Rape in California - Penal Code 261.5 PC
The primary factor in a statutory rape prosecution is the age difference between the two parties.

Thus, if a teenager initiates sex with another teenager, the first teen could still technically be charged with statutory rape.

While this rarely happens, it's still a possibility and it would be handled through the juvenile court system in California.

However, the vast majority of statutory rape cases involve a defendant who is 18 or older and a victim who is 18 or younger.

These type of sex crimes are aggressively prosecuted and penalized, especially when there is a significant age difference.

The prosecution is not required to prove that any type of force was used to engage in sexual intercourse.

Also, any amount of penetration, even slight, is considered sexual intercourse. It does not have to be proven that ejaculation occurred.

What are the Conditions for Statutory Rape Charges?

California Penal Code 261.5 PC states the following related to statutory rape charges:

  • unlawful sexual intercourse occurs when there is sex with a minor under 18 years old and the perpetrator is not their spouse;
  • it's a misdemeanor crime if the perpetrator who engages in unlawful sexual intercourse with a minor not more than three years older or three years younger;
  • it's a “wobbler” crime if the perpetrator who had unlawful sexual intercourse is more than three years older than the minor;
  • anyone who is 21 or older who engages in unlawful sexual intercourse with a minor who under 16 years of age is guilty of either a misdemeanor or felony and can be sentenced up to four years in a California state prison for a felony conviction.

Put simply, statutory rape occurs between an adult and a minor who is not a child, but normally a teenager getting close to the age of consent.

Normally, there is no force or violence and both parties know each other and have consented to have sexual intercourse.

PC 261.5 charges can be filed with little physical evidence and hearsay from a third party, making it a serious issue for anyone facing prosecution.

What are the Penalties for Penal Code 261.5 PC?

The primary determinant for how statutory rape is prosecuted (and the subsequent penalties) is the age difference between the defendant and the alleged victim. For example:

  • if the age difference between them is three years or less: the charge is a misdemeanor offense. (e.g., if the perpetrator is 19 and the victim is 16.);
  • if the age difference is more than three years: it's a “wobbler offense,” meaning it may be charged either as a misdemeanor or a felony;
  • if the defendant is age 21 or older and the victim is 16 or younger, the penalties are likely to be a felony case with harsher penalties.

Misdemeanor statutory rape is punishable by up to a year in county jail. Felony statutory rape may result in up to 4 years in state prison.

Sex offender registration 

PC 261.5 statutory rape is one of the few sex related crimes in California that does not require registration as a sex offender under Penal Code 290.

Civil penalties 

In addition, fines may be levied based on the age difference from $2000 up to $25,000. For example, an adult engaging in unlawful sexual intercourse with a minor less than two years younger is liable for a civil penalty not exceeding $2,000.

If the minor was at least two years younger than the adult, then the civil penalty can't' exceed $5,000. The civil penalty is $10,000 if the victim is at least three years younger than the defendant, and $25,000 is the minor was under 16 years old and the defendant was over the age of 21.

What are the Related California Offenses?

Penal Code 288 PC - lewd acts with a minor child

Lewd conduct against a minor involves touching the genitals, buttocks, or breasts of a person under age 14 for one's sexual gratification, regardless of whether other sexual activity took place.

Prosecutors sometimes add this charge to the charge of statutory rape if they try to get the defendant on the registry of sex offenders.

Penal Code 161 PC - rape

Always a felony, rape involves forced sexual activity without the victim's consent, regardless of age. If the act of sex with a minor was also forced, you might be charged with rape in addition to statutory rape.

Penal Code 287 PC - oral copulation with a minor

This sex crime occurs when there is oral copulation with someone under 18 years old and also applies if the act was completed by use of force, fear, or violence.

What are the Best Common Defenses?

Given the confusion in California law and the prevalence of teen sex in modern days, it's not uncommon for defendants to be unfairly or falsely accused of statutory rape.

A good criminal attorney may be able to base their defense strategy on one of the following common arguments:

  • You were falsely accused. Perhaps someone wanted to accuse you of a crime out of spite or vengeance, or you spurned a minor's advances, and they responded in anger by falsely accusing you.
  • You believed the victim was over 18. If the alleged victim looked older than 18 and lied about their age, or if you met the victim in a bar, it's reasonable to believe they were past the legal age of consent.

A common defense is to make an argument that you had an honest and reasonable belief the alleged victim was not a minor when you had sexual intercourse with them.

Criminal Defense for PC 261.5 Statutory Rape Charges
Contact our law firm to review all the options.

It might be possible that you really believed they were over 18 years old, but only later did you find out they were a minor.

Put simply, a good-faith belief the alleged victim was over 18 is a defense to statutory rape. 

Perhaps we can use statements by alleged victim they were an adult, their clothing and overall appearance, or the location where you met them, such as a bar.

It might be possible to negotiate with the prosecutor for reduced charges or even get the case dismissed.

Further, through prefiling intervention, we might be able to avoid the formal filing of charges before court.

Eisner Gorin LLP is based in Los Angeles County and has two office locations. Call our office at (877) 781-1570 for an initial consultation or fill out our 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...

We speak English, Russian, Armenian, and Spanish.

If you have one phone call from jail, call us! If you are facing criminal charges, DON'T talk to the police first. TALK TO US!

Anytime 24/7