CA Penal Code 261.5

Statutory Rape

Statutory rape, CA Penal Code 261.5[1], is a growing problem in California and is one of the most occurring sex crimes in the state. In order to be convicted of statutory rape, the prosecutor must prove the elements of the crime:

  1. That you had sexual intercourse with another person (the amount of penetration is not important)
  2. That you were not married to the victim at the time of the intercourse
  3. That the victim was under 18 at the time of the offense

If the prosecutor can prove these three elements beyond a reasonable doubt then you will be convicted of statutory rape. Statutory rape is a wobbler in California, meaning that the crime can be charged as either a felony or a misdemeanor. The three factors determining how the crime will be charged are:

  1. If you are no more than three years older than the victim then you will be charged with a misdemeanor, always
  2. If you are more than three years older than the victim then you will be charged with either a felony, or a misdemeanor
  3. If you were 21 years old or older and the victim was under 16 years old at the time of the offense then you can be charged with either a felony, or a misdemeanor, but the penalties are more harsh

If you are convicted of statutory rape as a misdemeanor then you’ll face:

  • Informal probation
  • Up to one year in county jail
  • Up to $1,000 in fines

If you are convicted of statutory rape as a felony then you’ll face:

  • Formal probation
  • Up to one year in county jail
  • Up to 3 years in prison, if you were under 21 years old and the victim was older than 16 years old
  • Up to 4 years in prison, if you were over 21 years old and the victim was younger than 16 years old
  • Up to $10,000 in fines

In addition to the criminal punishments mentioned above, there are civil penalties that you could face, but only if you are 18 years old or older. These civil penalties are dependent on your age and the age of the victim:

  • A $2,000 fine if the victim is less than two years younger than you
  • A $5,000 fine if the victim is at least two years younger than you
  • A $10,000 fine if the victim is at least three years younger than you
  • A $25,000 fine if the victim is younger than 16 and you are older than 21

Prosecuting Statutory Rape – CA PenalCode 261.5

As previously stated, in order to be convicted of statutory rape the prosecutor has to prove beyond a reasonable doubt:

  1. That you had sexual intercourse with another person (the amount of penetration is not important)
  2. That you were not married to the victim at the time of the intercourse
  3. That the victim was under 18 at the time of the offense

If the prosecutor cannot prove at least these three elements of the crime then you will not be convicted of statutory rape.

The prosecutor does not need to prove that force, fear, or fraud took place in order for a statutory rape conviction. Similarly, the prosecutor also doesn’t need to prove that the victim did not consent to the sexual intercourse. All the prosecutor has to prove is that there was an age difference between you and the victim and that sexual intercourse occurred.

It is possible for a minor to be charged with statutory rape as well. This seems like a double standard because both the defendant and the victim are minors but it can and does happen.

The third element of the crime is that the victim was under 18 at the time of the offense. The state recognizes a person as being 18 one minute after midnight. For instance, if your birthday is on February 21st then you are officially one year older, one minute after midnight on February 21st.

Defending Statutory Rape – CA Penal Code261.5

Rape is a terrible crime and those guilty of the crime ought to be punished to the fullest extent of the law. But, if you truthfully believed that the victim was over 18, and he/she made you believe that they were older than 18; or if both the defendant and the victim are close in age then maybe a conviction is not appropriate.

A skilled criminal defense attorney will look at several different approaches to prove your innocence. The first one, as briefly touched upon is that you truthfully and reasonably believed that the victim was over 18. This defense is commonly known as a mistake of fact defense and is a viable defense for statutory rape cases. Evidence that might support the mistake of fact defense is:

  1. Where you met the victim (if for instance you met the victim at a bar and he/she was using a fake ID then you could reasonably and honestly believe that the person was over 18)
  2. What he/she looked like (if the victim was dressed provocatively and was trying to look older than he/she actually was then you might reasonably believe that the person was over 18)
  3. What the victim said (if the victim explicitly said that he/she was over 18 then you could absolutely reasonably believe that he/she was over 18)

Your criminal defense attorney will ask you to describe the events leading up to the offense, in detail, to see if any of these options mentioned above are viable defenses.

Because of the nature of the crime, it is not uncommon for people to be the victim’s of false accusations. Like a lot of sex crimes, the charges can be filed out of jealousy, hate and revenge. Statutory rape charges can also be filed by angry parents who don’t like their child’s boyfriend/girlfriend and make up the claim to get that person in trouble.

In California, consent is not a valid defense for a statutory rape charge. Even if the victim consented to having sexual intercourse with you but there was an age gap, you can still be charged with CA Penal Code 261.5.

The only positive element of a statutory rape conviction is that you don’t have to register as a sex offender in accordance to CA Penal Code 290.

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References

[1] 261.5. (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by

imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(e) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:

(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).

(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).

(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).

(D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).

(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.

(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.

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