Statutory Rape – California Penal Code Section 261.5 PC

California Penal Code Section 261.5 titled Statutory Rape makes it a crime for an adult (18 years of age or older) to have sex with a minor who is under the age of 18 years old regardless of whether the minor consented to have sex with the adult. The prosecution has the discretion to charge statutory rape as either a misdemeanor or a felony. For example, if a 20-year-old female has sex with a 16-year-old male in her class, she could be charged with and convicted of statutory rape under California Penal Code Section 261.5 PC.

You should not take a charge of statutory rape lightly as a conviction of this crime carries a maximum of four years in California State Prison.

So, if you have been charged with statutory rape, you should contact an experienced statutory rape defense attorney at The H Law Group to defend you and keep you from going to prison. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404.

Text of California Penal Code Section 261.5 PC

According to California Penal Code Section 261.5 PC:

“(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.”

Note: PC 261.5 can be charged by the prosecution as either a misdemeanor or a felony depending on the defendant’s criminal record and the age difference between the defendant and the minor. The age difference between the defendant and the minor is the major factor weighing in on whether the prosecution charges statutory rape as either a felony or a misdemeanor.

Proving a Person Guilty of Committing Statutory Rape

For the prosecution to prove an individual guilty of committing statutory rape, the prosecution must prove a number of elements beyond a reasonable doubt. If the prosecution fails to prove even one element, it will not be able to convict the defendant of the crime. The prosecution must prove the following elements:

  • The defendant engaged in sexual intercourse
  • The defendant penetrated the minor no matter how slight the penetration
  • The defendant did so with a minor (a person under the age of 18)
  • The defendant and the minor were not married at the time they engaged in sexual intercourse

Consent is not a defense – The fact that the minor consented to engage in sexual intercourse with the defendant is not a defense for the defendant. This is so because the minor it’s presumed that the minor cannot form the consent necessary to engage in sexual intercourse with an adult. So, even if the minor “consent,” such consent is not valid and cannot be used by the defendant as a defense.

Minor having sex with another minor -Minors can technically be prosecuted for having sex with other minors. However, district attorneys rarely, if ever, bring such cases.

Penalties for Committing Statutory Rape

If the prosecution convicts an individual of statutory rape, the defendant faces a number of consequences. The consequences a defendant faces depend on whether the prosecution convicts the defendant of felony statutory rape or misdemeanor statutory rape. If the defendant is not more than three years old than the minor he allegedly engaged in sexual intercourse with, statutory rape is always charged as a misdemeanor. However, if the defendant is more than three years old than the minor the defendant allegedly engaged in sexual intercourse with, the prosecution has the discretion to charge statutory rape as either a felony or a misdemeanor.

Felony Statutory Rape Penalties

  • Conviction of a felony offense
  • Sixteen months, two years, three years, or four years in California State Prison
  • A fine of up to $10,000
  • Placement on probation

Misdemeanor Statutory Rape Penalties

  • Conviction of a misdemeanor offense
  • A maximum of one year in county jail
  • A fine of up to $1,000
  • Placement of misdemeanor informal probation

Civil Penalties

If the defendant is convicted of statutory rape, the court can impose civil penalties on the defendant. The dollar amount of the civil penalty a defendant faces depends on the age difference between the defendant and the minor with whom he engaged in sexual intercourse:

  • Minor is less than 2 years younger than the defendant – $2000 fine
  • Minor is 2 years younger than the defendant – $5000
  • Minor is 3 years younger than the defendant – $10,000
  • Minor is under the age of 16 and the defendant is over the age of 21 – $25,000

Statutory Rape Defenses

If you have been charged with statutory rape in violation of California Penal Code Section 261.5, there are a number of defenses that your criminal defense attorney can make to defend you.

  • The defendant did not know the minor he engaged in sexual intercourse with was under the age of 18 – If the defendant can show that he honestly and reasonably believed that the person he had sex with was 18 years of age or older, this can be used as a defense to a statutory rape charge
  • The defendant is falsely being accused of engaging in sexual intercourse with the minor – False accusations are rampant, and so defendants are often accused of statutory rape out of anger, jealousy, or revenge. So, if this is the situation, you’re in, your attorney will argue that you’re falsely being accused of statutory rape
  • Consent – Unfortunately, in California, consent by a minor to engage in sexual intercourse with an adult is not a defense.

Examples of Statutory Rape

Jennifer and Mike go to college together. Jennifer is 20 years old and Mike is a smart 16-year-old kid who finished high school early. Mike likes Jennifer and hits things off her. Both of them have sex throughout the first semester. Mike’s mom finds out that he’s sleeping with Jennifer, and so she calls the police. Jennifer can be charged with and convicted of statutory rape in this situation even though Mike consent to having sex with Jennifer.

Holly and Tom go to school together. Tom is 19 and Holly is 17. Tom and Holly become boyfriend and girlfriend and have a ton of sex with each other. Here, if the police find out that Tom (19) and holly (17) are having sexual intercourse, they could arrest Tom for statutory rape, but Tom can only be charged with misdemeanor statutory rape because he is less than three years older than Holly.

Registration as a Sex Offender

A person who is convicted of statutory rape by violating penal code 261.5 is not required to register as a sex offender in California. However, if you have been charged with rape and/or lewd or lascivious acts with a child, you will be required to register as a sex offender.

Contact an Experienced Criminal Defense Attorney

If you or a loved one has been charged with statutory rape in Los Angeles or elsewhere in the State of California, you should immediately contact an experienced sex crimes defense attorney. At the H Law Group, we have defended numerous clients who have been charged with statutory rape. We have been able to achieve successful outcomes in most cases.

Don’t wait to call an attorney as a conviction of statutory rape in California can result in up to four years of imprisonment if convicted. So, hire an experienced sex crimes defense attorney at The H Law Group to defend you and keep you from going to prison. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404.

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Act now to protect your legal rights.