Consent Not a Valid Defense Under California’s Statutory Rape Law

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 30, 2015

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In the state of California, it is crucial to know the difference between statutory rape and rape. Statutory rape does not involve a forced sex act upon another person. Additionally, violence is not involved and in many cases, the alleged perpetrator often knows the alleged victim and is close with him or her.

Under California Penal Code Section 261.5, statutory rape has been committed if an individual simply engages in sexual intercourse with a minor who is under the age of 18. The elements of a statutory rape charge are:

  • The alleged perpetrator had sexual intercourse with the victim;
  • The alleged perpetrator and the victim were not married at the time of the sexual intercourse; and
  • The victim was under 18 years of age at the time of intercourse.

In statutory rape cases, the alleged victim may have “consented” to engaging in sexual intercourse with the alleged perpetrator. However, unless the alleged perpetrator is married to the minor, it is still against the law. Let’s take a look at how statutory rape laws define “consent” in California.

How California Law Treats “Consent”

In California, the age of consent for any sexual activity is 18. This means that it is against the law for anyone to engage in sexual intercourse with a person under the age of 18, unless that person is a spouse. Even if the minor verbally agrees to the intercourse, it is still prohibited.

But what if the alleged perpetrator and his or her partner are both minors? This is still considered statutory rape under California Penal Code Section 261.5.

Whether or not charges will be pressed is not up to the person that the alleged perpetrator had sex with. Often times the person’s parents or the District Attorney will be the ones to press charges.

Consequences of Statutory Rape

The penalties for a statutory rape conviction can vary. In California, statutory rape is considered a “wobbler,” meaning it can be charged either as a misdemeanor or a felony depending on the circumstances of the case:

  • If the alleged perpetrator engaged in sexual intercourse with a minor who is not more than three years younger than him or her, it could be charged as a misdemeanor;
  • If the alleged perpetrator engaged in sexual intercourse with a minor who is more than three years younger than him or her and the minor is not younger than 16, it could be charged as a misdemeanor or a felony. Misdemeanor statutory rape is punishable by up to 364 days in jail and a maximum $1,000 fine. If the alleged perpetrator is convicted of a felony, he or she will face 16 months, two or three years in jail and a fine of up to $10,000;
  • If the alleged perpetrator is 21 years or older and he or she engaged in sexual intercourse with a minor who is under the age of 16, it could be charged as a misdemeanor or a felony. A felony conviction is punishable by two, three or four years in jail and up to $25,000 in fines.

A statutory rape conviction also could result in mandatory lifetime registration as a sex offender.

What are Some Legal Defenses to Statutory Rape?

The following are some of the successfully raised defenses in prior statutory rape cases in California:

  • The alleged perpetrator had good faith to believe that the alleged victim was 18 years of age or older;
  • The two parties who engaged in sexual intercourse were legally married to the alleged victim;
  • The alleged perpetrator did not actually engage in sexual intercourse (an individual cannot be convicted under PC 261.5 for oral sex or other forms of foreplay); and
  • The person the alleged perpetrator had sexual intercourse with was not under the age of 18 at the time.

If you have additional questions about statutory rape laws in California, you may want to speak to a California criminal defense lawyer who specializes in sex crimes.

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