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Statutory Rape–PC 261.5
Statutory rape to many people may seem like a victimless crime. Under California Penal Code 261.5, statutory rape is committed whenever a person has sexual intercourse with another person under the age of 18, regardless if both parties clearly and willingly consented.
Statutory rape is a “wobbler” offense, meaning that it can be charged as either a misdemeanor or as a felony.
California Penal Code Section 261.5 is as follows:
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.
What are the Elements of Statutory Rape?
To be found guilty of statutory rape, the prosecution must prove each element of the crime beyond a reasonable doubt. The elements include proof beyond a reasonable doubt of the following:
- Sexual intercourse with another person
- The persons who engaged in sexual intercourse were not married to each other at the time of the act and,
- The alleged victim was under the age of 18 when the act was performed
Sexual intercourse under California law means any kind of penetration, no matter how slight. There need not be a completion of the act or ejaculation.
Further, there is no element of force, fraud, duress or threat involved. Both parties may well have voluntarily engaged in the act and the victim may have initiated it.
It has been almost commonplace nowadays to read about female teachers having sex with underage students. These individuals can be charged with statutory rape, though it depends on the charging state and how it defines these crimes. Even a 17-year old student who has sex with a 16-year old student could be charged with statutory rape.
Legal Defenses to Statutory Rape
The most common defense to statutory rape is that the offender honestly and reasonably believed the victim to be at least 18 years of age. There are factors that you can point to in support of your honest belief:
- The victim said he or she was 18
- The victim produced a seemingly valid ID
- The victim dressed and acted like an older teenager
- You met the victim at a bar where he or she was drinking alcohol
- Other people said the victim was 18 or older
Another defense is that no penetration occurred. If there was no ejaculation or evidence of penetration, this element may not be proved.
Consent, however, is not a defense. The rationale behind this is that minors are more susceptible to exploitation and do not fully understand the nature or legal consequences of their actions, at least when it comes to sex.
Penalties for Statutory Rape
There are some circumstances under which statutory rape will be charged as a misdemeanor. For instance, if you are no more than 3 years older than the alleged victim, then you will only be charged with a misdemeanor.
If you are more than 3 years older than the victim, the prosecutor could charge you with either a felony or misdemeanor depending on whether you have a criminal record or based on other facts in your case. For example, if the victim was 17 and you were 21 and you have never committed any other crimes, you would likely be charged with a misdemeanor.
If the victim was 14 or under, though, you will undoubtedly face either felony statutory rape or lewd acts with a child under PC 288.
The penalties for a misdemeanor statutory rape include:
- Summary or informal probation
- Up to one year in jail
- No more than a $1,000 fine
Should the age difference between you and the victim be more than 3 years, you do face possible felony charges. The greater the disparity in age, the more likely a felony charge will be brought.
The penalties for felony statutory rape include:
- Formal or summary probation and up to one year in jail
- Or, 16-months, 2 or 3 years in jail or prison (or detention if you are a minor and not charged as an adult)
- If you were 21 or older and the victim was under 16, you face from 2, 3 or 4 years in prison
- A fine up to $10,000
No Sex Crime Registration
Unlike rape or other sex crimes, you are not required to register as a sex offender if convicted of statutory rape.
Civil Penalties Apply
Unlike other crimes, if you are 21 or older, you may be forced to pay a civil penalty along with your criminal sentence. The amount of the penalty depends on the age disparity between you and the victim:
- $2,000 if the victim is less than 2 years younger than you
- $10,000 if the victim is more than 3 years younger than you
- $25,000 if you are over 21 and the victim is under 16
Retain a California Criminal Defense Attorney
Whether facing misdemeanor or felony statutory rape charges, or any other sex-related offense, engaging the services of a California criminal defense lawyer will ensure that your rights as a defendant are protected and that all available defenses will be pursued.