Penal Code section 261.5 PC – Statutory Rape

Rape is defined in the California Penal Code as any act of sexual intercourse that is accomplished under a certain set of circumstances.

Penal Code section 261.5 involves statutory rape, which is generally sexual intercourse with a minor. This is a misdemeanor if the perpetrator and the victim are within three years of age. If the age difference is greater than three years, the crime is a wobbler. This means is can be charged as a misdemeanor or a felony, per the prosecutor’s discretion after considering mitigating and aggravating circumstances. This could result in a year in county jail.

If the perpetrator is 21 or older and the victim is under 16, this is also a wobbler, but can result in a prison sentence of 2, 3, or 4 years.

It is noteworthy that this crime also opens itself up to vast civil punishments, and the perpetrator may be liable for upwards of $25,000 in fines in certain circumstances.

Perhaps the most tantalizing aspect of a statutory rape case in criminal court is the fact that it is a charge that does not consider consent. If the sexual intercourse is consensual, the perpetrator may still be charged with statutory rape simply given his or her age in relation to the victim. This leads to many false accusations and “revenge” allegations against otherwise seemingly innocent people.

Prosecuting Statutory Rape in California

The prosecutor must be able to prove:

1. There was an act of sexual intercourse;
2. The act was accomplished with someone other than the perpetrator’s spouse; and
3. The victim was a minor at the time the sexual intercourse occurred.

Again, it is important to note the prosecutor’s role in a case like this. The prosecutor will ignore whether or not the victim consented to the sexual intercourse, and instead simply look at whether the act occurred while he or she was still a minor. If so, the prosecutor will move forward with the case, regardless of whether the victim himself or herself wants to proceed with the case.

This occurs frequently, because often the victim and the perpetrator are in a relationship or chose to perform the sexual act voluntarily and freely. Regardless of whether the two individuals were dating for years before one of them turned 18, the act is still technically illegal at that point.

Defending Statutory Rape – CA Penal Code 261.5

This is a very serious charge. Everyone has heard of the crime of rape, but statutory rape is quite a bit different from the type of rape that often gets reported in the media. Statutory rape, as mentioned, is simply about the age of the people involved, regardless of whether consent was given.

This means the older person may be charged with a potential felony and face years in jail for doing what most consenting adults do without issue. It is vital to hire a skilled defense attorney in these cases to vindicate your rights.

An attorney will have two main approaches to acquitting you of these charges. First, your attorney will produce evidence that you honestly thought the victim was an adult, and that such belief was reasonable. If the person looks like an adult, provided you a standard fake identification that indicated the person was older than 18, and/or the person said he or she was an adult, then you may be justified in engaging in sexual intercourse with that person.

Next, your attorney can try to prove no sexual intercourse took place. If there was no sexual intercourse, the crime of rape, even statutory, could not be completed. In such instance, you cannot be convicted of statutory rape.

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.

If you or a loved one is being charged with Statutory Rape in California and would like to have someone represent you in a court of law, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office, or by phone.

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