Torrance Statutory Rape Attorney

STATUTORY RAPE – PC § 261.5

“Can I be charged with rape for having sex with my girlfriend?”

In California, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 18), even if the sex is consensual. Those who break the law have committed statutory rape.

Statutory rape refers to sexual relations involving someone below the “age of consent.” People below the age of consent cannot legally consent to having sex. This means that sex with them, by definition, violates the law.

No Requirement of Force

Statutory rape differs from other types of rape, and from child molestation, in that the act would not be a crime if all participants were above the age of consent. Unlike “forcible rape,” statutory rape can involve underage participants who willingly engage in sexual relations. However, because those under the age of consent cannot give legal consent to sex, the act is a crime whether or not force is involved. If the act involves force or coercion, many states prosecute the offender under the separate statutes punishing child molestation or aggravated rape.

Factors Affecting the Level of Offense Charges and Penalties

Laws punishing statutory rape often include a spectrum of offenses, ranging from misdemeanors to high level felonies. In general, two main factors affect the level of offense for an act of statutory rape: (1) the age of the victim; and (2) the age difference between victim and perpetrator. Other factors, including any prior sex offenses committed by the offender, whether drugs or alcohol were involved, and whether pregnancy resulted, can also affect the level of charge imposed.

For example, in some states sexual relations with someone less than 12 or 14 years old constitutes a first degree felony, while sex with someone older but still below the age of consent, might be a misdemeanor or lower level felony. In other states, any act of statutory rape constitutes a felony, with serious and sometimes mandatory jail sentences resulting.

State laws vary widely on these factors, with almost each state using a different calculation method to classify the level of offense. The range of offenses within a single state can involve multiple factors and include a broad range of charges.

Some states impose harsher penalties when the offender is a certain number of years older than the victim. Other state have statutes in which the age of the perpetrator alone (over 21, for example), pushes the act into a higher level of offense.

Punishment for statutory rape can include mandatory prison or jail sentences, probation, fines, and mandated treatment services. Many states require those convicted of statutory rape to register as sex offenders.

California Laws and Penalties

Statutory rape is prosecuted under California’s rape and sexual assault laws. Penalties depend on the ages of the defendant and victim, as described below.

Unlawful sexual intercourse includes sexual intercourse or penetration (however slight) between a minor who is 17 or younger and a defendant of any age.

Unlawful oral copulation includes oral sex between a minor who is 17 or younger and a defendant of any age.

Sexual penetration includes sexual intercourse or penetration (however slight) between a minor who is 14 or 15 and a defendant who is at least ten years older than the minor.

Lewd and lascivious acts upon a child includes sexual contact between a minor who is 13 or younger and a defendant of any age. This offense also includes contact between a minor who is 14 or 15 and a defendant who is at least ten years older than the minor.

Depending on the ages of the parties, and other factors, statutory rape crimes may be tried as misdemeanors or felonies in California.

For misdemeanors, punishment may include probation, a fine of up to $1,000, up to one year in jail, or some combination of these penalties.

A felony conviction will incur at least 16 months (and up to four years) in prison; and may also incur probation, up to $10,000 in fines, or both.

(Ca. Penal Code § 261.5, 288a, 289, & 288.)

“Romeo and Juliet Laws”

To address sexual relations in which all participants are below the age of consent, or which involve an offender close in age to the minor, some states have enacted what have been called “Romeo and Juliet laws.” These laws carve out different treatment of statutory rape offenses involving individuals close in age.  California, however, does NOT have a Romeo and Juliet Law.

Conclusion

Statutory rape is a sex crime that is a “wobbler” — meaning it can be charged as a felony or misdemeanor offense — and may be punishable by incarceration, fine, probation, and/or registry as a sex offender, depending on the state and circumstances of the incident.