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Statutory Rape Law in California - Penal Code 261.5 PC

The Crime of Statutory Rape Under California Law - PC 261.5

In the state of California, it's illegal to engage in sexual intercourse with someone under 18 years old who is not your spouse. Penal Code Section 261.5 PC defines the crime known as "statutory rape," which also called unlawful sex with a minor.

California Statutory Rape Law - Penal Code 261.5 PC
California Penal Code 261.5 PC makes it illegal to have sexual intercourse with someone under 18 years old who is not your spouse.

It's important to note that under PC 261.5 it doesn't matter if:

  • The sex was consensual
  • The minor initiated the sexual activity

In other words, the easiest way to understand this statute is that it prohibits any type of sexual activity with anyone under the age of 18. 

Our law firm has often been asked many questions when someone is under a criminal investigation or already arrested for Penal Code 261.5 PC statutory rape. For example:

  • What if the defendant was also under 18 at the time?
  • What if the both parties were very close in age, such as less than a year apart?
  • What if the both parties were in a committed long-term relationship?

While these are certainly relevant questions, none of these factors will impact a defendant's criminal liability under the PC 261.5 statutory rape statute in California. 

Many states have passed safe harbor provisions normally called “Romeo and Juliet Laws.”

This provision says that two people who are close in age that have a committed relationship before one party turns 18 years old can lawfully engage in sexual activity.

However, the state of California has not enacted any such safe harbor provision.   

In order to provide readers with more detailed information about California's statutory rape law, our Los Angeles criminal defense attorneys are providing an outline below.

What is PC 261.5 Statutory Rape in California?

The serious sex crime of statutory rape is defined under California Penal Code 261.5 PC:  

PC 261.5 is defines the crime unlawful sexual intercourse with a minor in California.
Statutory rape is described as unlawful sexual intercourse with a minor in California.
  • Unlawful sexual intercourse is the act of sexual intercourse with a minor who is not the spouse of the perpetrator. A minor is someone under the age of 18 years.

As you can see, the statutory rape law is simple and straightforward.

In order to be convicted of violating Penal Code 261.5 PC statutory rape law, the prosecutor has to prove beyond any reasonable doubt fall the factors of the offense, which are commonly called the elements of the crime (CALCRIM 1072):

  • Defendant had sexual intercourse with the victim
  • Defendant and victim weren't married at the time of the offense
  • When intercourse occurred, the victim was under 18 years' old

The prosecutor is not required to prove that any type of force was used to engage in sexual intercourse. Also, as stated above, consent by victim is not a defense.

This issue of “consent” in a PC 161.5 case is essentially the opposite of charges of rape under Penal Code 261 PC, where the lack of consent is one of the crucial factors for a prosecutor.

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

A minor can be charged with violating the Penal Code 261.5 PC statutory rape law, but their criminal case would proceed through the juvenile court system in California.

The related California offenses for Penal Code 261.5 PC statutory rape include:

What are the Penalties for PC 261.5 Statutory Rape?

If convicted of Penal Code 261.5 PC statutory rape, the ages of both parties are crucial for sentencing in court.

Penalties for Penal Code 261.5 PC in California
If convicted of PC 261.5 statutory rape, the ages of both parties are crucial for sentencing.

PC 261.5 is another California “wobbler” that can be charged as either a misdemeanor or felony crime. The circumstances used to determine how to file the case include:

  • If you are less than 3 years older than victim, it's a misdemeanor crime
  • If you are more than three years older, it's a “wobbler”
  • If you are 21 or older and the victim is under 16, it's typically a felony

If convicted of PC 261.5 as a misdemeanor, the penalties include:

  • Up to one year in a county jail
  • A fine up to $1,000
  • Summary probation

If convicted of PC 261.5 as a felony, the penalties include:

  • 16 months, two years, or three years in the state prison
  • A fine up to $10,000
  • Formal probation

If you are 21 or older and victim is under 16 years old, the penalties will increase to two, three, or four years in the California state prison.

A Penal Code 261.5 PC statutory rape conviction, either a misdemeanor or felony, doesn't typically require sex offender registration under Penal Code Section 290.

It should be noted that a conviction for statutory rape means you could also face civil penalties.

How Can I Fight Penal Code 261.5 PC Statutory Rape Charges?

In order to fight your statutory rape charges, you need to consult with our experienced Los Angeles criminal defense lawyers who can use a wide range of strategies:

How to fight California Penal Code 261.5 PC statutory rape charges
Our criminal lawyers can use different strategies to fight your PC 261.5 statutory rape charges.

Reasonable belief victim was over 18 years old

One of the most common defenses includes making an argument you had a belief the victim was not a minor at the time of sexual intercourse. Perhaps you believed they were over 18, but simply incorrect.

Unlike most sex crimes, a good-faith belief the alleged victim was over 18 is a defense to statutory rape. 

When using this type of defense, there are several important factors we can use to support your belief, such as:

  • Statements made by alleged victim that she was over 18 years old
  • Victims clothes and overall general physical appearance
  • The location where you met the alleged victim, such as a bar

Another potential argument includes showing the statutory rape accusations are false. Perhaps the alleged victim made the allegation due to anger or jealously.

If you or a family member has been arrested and charged with violating California Penal Code 261.6 PC statutory rape law, contact our experienced teams of Los Angeles criminal defense lawyers to review the case.

Through the process of prefiling intervention, we might be able to convince the prosecutor to avoid filing formal charges against you.

Eisner Gorin LLP is a top-rated criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067.

Our main office is next to the Van Nuys Superior Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401.

Contact our law firm for a consultation at (877) 781-1570.

We speak English, Russian, Armenian, and Spanish.

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