In California, it is a crime for an adult to have sexual intercourse with a minor. The act is an offense, regardless of whether it is consensual or initiated by the minor. The age of legal consent in California is 18 years and above, which means that a minor is incapable of legally giving consent to sexual activities. When two minors have sexual intercourse, unless they are married, then they can be charged with statutory rape.

When convicted of statutory rape, you can face severe consequences by receiving hefty fines and prison time. False accusations are a significant concern with statutory rape as you can be wrongly charged even if you are innocent. The accusations might be as a result of revenge, anger, jealousy, or a misunderstanding. Contact our knowledgeable criminal defense lawyers at the California Criminal Lawyer Group if you are facing charges of statutory rape in San Jose.

California’s Statutory Rape Laws

Under California Penal Code 261.5 PC statutory rape is defined as engaging in sexual intercourse with an individual under 18 years old who was not the defendant's spouse at the time of the intercourse. The crime is also referred to as unlawful sex with a minor or unlawful sexual intercourse. Criminal and civil proceedings are treated differently by the law, and different timelines apply.

Statute of limitations deadline is put into place to ensure a case goes to trial with the best evidence possible. Before September 2016, the statute of limitations in California for rape and sex crimes was ten years. As of January 2017, SB-813 went into effect in California, ending the 10-year statute of limitations on pursuing criminal charges for statutory rape. The state of California abolished the deadline without preconditions meaning you can be charged with statutory rape regardless of when it happened.

Though it is not that common, the state of California also charges minors with statutory rape even though the defendant is technically also a victim of the act. The case will probably be tried in the California juvenile court system.

What the Prosecutor Must Prove

California Penal Code 261.5 states that you can only be convicted for statutory rape if the prosecutor proves the following elements:

  • You had sexual intercourse with a minor regardless of the amount of penetration, how slight it is, or there was ejaculation
  • That you were not married to the defendant at the time, even if the minor is married to another person or used to be married, you will be charged with the offense
  • The prosecutor needs to prove the alleged victim of the statutory rape was under the age of eighteen years at the time of the offense. The difference in age between you and the victim is critical to sentencing. The age gap importance means that the prosecutor is also required to prove how old both you and the victim were at the time of the sexual act

The prosecutor does not have to prove that force was used to undertake the sexual act. Proof of the victim's consent to sexual intercourse is also not necessary. The charge can also arise from a loving and caring relationship as the age of both parties is the only thing that matters.

Penalties for Statutory Rape in California

Under California Penal Code 261.5 PC, statutory rape is considered a wobbler, so it can either be charged as a misdemeanor or a felony.

Three elements determine how the offense will be charged and their possible penalties:

  • Your case will be charged as a misdemeanor if you are not more than three years older than the alleged victim
  • In case you are more than three years older than the victim, your case may be charged as either a misdemeanor or a felony
  • If the victim is under 16 years, and you are 21 years or older at the time you have sexual intercourse, the offense may be charged as a misdemeanor or a felony

The District Attorney’s office will consider the facts of your case and prior criminal offenses to determine whether to charge you with either a misdemeanor or a felony.

California does not abide by the Romeo and Juliet law, which makes it legal for minors to have sexual intercourse as long as both parties are around the same age. In California, it is illegal for children to have sex, and if the age gap is no more than three years, then they can be charged as a misdemeanor.

Misdemeanor Statutory Rape Penalties

The potential penalties for a misdemeanor charge on statutory rape include:

You can receive informal probation, also known as misdemeanor or summary probation.

  • You will face sentencing of a maximum of one year in county jail.
  • You will also receive fines amounting to a maximum of $1,000.

Felony Statutory Rape Penalties

The penalties for a statutory felony rape include:

  • You may get either formal felony probation or informal probation with a maximum of one year in county jail
  • You will also be in custody for either 16 months, two years or three years. If you were 21 years or older at the time of the sexual intercourse act and the victim was under the age of 16, then the possible sentence is two years, three years or four years
  • You will also receive fines amounting to a maximum of $10,000

Formal probation requires supervision by an assigned probation officer to whom you have to report regularly. It limits your ability to move out of the area and can interfere with your employment. Informal probation, which is granted in misdemeanor cases, does not require formal supervision by a specific probation officer. The court will supervise your probation instead of having meetings with the probation department.

The California Penal Code 261.5 does not require one to register as a sex offender if convicted on statutory rape charges. However, if you are charged with other related offenses, such as lewd or lascivious acts with a child and rape, you will be required to register as a sex offender.

In addition to criminal consequences, you can lose your employment or lose professional licenses such as a license to practice social work, medicine, psychology, law, or other professions. You can also lose custody of your children and be permitted to have only supervised contact with children. In most cases, you will also face a civil lawsuit for damages the victim has suffered.

Being accused of rape, mainly if the case draws media attention or other publicity, also can result in severe outcomes past a criminal prosecution.

Statutory Rape Civil Penalties

If you are charged with California statutory rape, you can also face civil penalties. You will have to pay extra fees in addition to serving jail time and paying criminal fines. You are only required to pay the fee if you are an adult. The amount you will be fined depends on the age difference between you and the victim. They include:

  • If the alleged victim was two years younger than you at the time of the sexual act, then you will receive fines of up to $2,000
  • You would have to pay up to a maximum $5,000 fine if the victim was at least two years younger than you
  • If the victim were at least three years younger than you, you would have to pay up to $10,000 in fines
  • If you were above the age of 21 years and the victim under the age of 16, you would be required to pay up to $25,000 in fines

Statutory Rape Probation Terms

When you are placed on probation, the court will impose specific conditions of probation that apply to your statutory rape conviction. The probation terms might include the following:

  • Visiting your probation officer as often as required by the requirements set
  • You might be required to perform community services
  • You can be demanded to attend to sexual addiction programs
  • In some circumstances, the court might order you to stay away from minors or prevent you from living too close to parks or schools

Whether your case is charged as a misdemeanor or a felony, you can have your full sentence imposed if you fail to satisfy your terms of probation. An attorney will be able to help you get an appropriate type of probation as well as probation terms you can complete.

Possible Defenses to Fight Statutory Rape Cases

There are several legal defenses to a statutory rape charge that a criminal defense attorney can present in your case. The following are the most commonly used legal defenses:

You Reasonably Believed the Victim to be above 18 Years

If you reasonably and honestly believed that the victim was above the age of 18 years at the time you had sexual intercourse, there is a possibility that you will not be convicted. Although ignorance is not an excuse, the mistake of fact legal defense has been applicable in many cases, and honestly believing the victim was of legal consent age is a specific version of that defense. You can use the following evidence to support this defense:

  • You can mention the statement made by the alleged victim claiming she is above the age of 18 years
  • You can also describe the general appearance and attire of the victim, which made you believe she is an adult
  • If you met the alleged victim at an adult venue such as a bar or a party, that could prove that you honestly believed the victim was of legal consent age

False Accusations

Just like other sex crimes, false accusations are also widespread in statutory rape charges, and in most cases, there is no evidence available to support the victim's claim. When accused of statutory rape, it is vital to gather any evidence to support your proof. In most cases, false statutory rape accusations are initiated by revenge, jealousy, or anger. You can use the following evidence to prove that you are falsely accused:

  • You can provide a witness testimony concerning the victim’s possible motives for falsely accusing you
  • A witness testimony confirming your alibi at the alleged time of the sexual act will support your innocence
  • Your criminal defense attorney can also use investigative tools such as a private polygraph test to convince the jury that you did not do the sexual act

Under California Penal Code 261, you can not use the consent of the alleged victim as a defense because minors are legally deemed unable to give consent.

Offenses Related to Statutory Rape Charge

The following are California sex crime related to California Penal Code 261.5 statutory rape:

  1. Lewd Acts with a Child

Under the California Penal Code 288, the crime of lewd acts with a child is defined as touching a child 14 years or younger for sexual gratification. In some cases, you can also be charged with the offense if the child is 15 years or younger. If accused of lewd acts with a child also referred to as child molestation, your case will be charged as a felony, and you can face up to 8 years in California State Prison.

California Penal Code 290 requires one to be registered as a sex offender if convicted of the offense of lewd act with a minor. The law requires one to register every year on their birthday or when they move to a new address. Failure to register as a sex offender would result in up to a one-year jail term if you were convicted as a misdemeanor and a sentence of up to three years if you were convicted of felony charges.

The prosecution will need to provide evidence of you touching the minor with the intent of gratification of lust, passions, or sexual desires. The consent of the minor to the sexual act is not considered in court. If found guilty, you will spend three, six, or eight years in state prison. You will also be fined a maximum of $10,000.

Although it seems like if convicted of statutory rape with the victim being under the age of 14 years, you should also be sentenced to lewd acts with a minor, but this is not necessarily the case. Lewd acts with a child require intent to gratify or arouse sexual desires, whereas the California statutory rape requires intent to have sexual intercourse with a minor.

Statutory rape is usually used as a plea bargain for those initially charged with lascivious acts with a minor to avoid the requirement of being registered as a sex offender.

  1. Oral Copulation with a Minor

California Penal Code 288(a) states that it is a crime to have consensual oral copulation with a minor. Just like the laws applicable to statutory rape, you can be charged with oral sex with a minor even if the act was consensual. If found guilty, you will receive the same amount of punishment as charges on statutory rape, but you will need to be registered as a sex offender. You will be required to register as a tier one sex offender if your case was tried as a misdemeanor, meaning you will be registered for a minimum period of ten years. You will have to register as a tier two sex offender if you are a felony offender, and you will be registered for a minimum period of 20 years. If there is any presence of intoxication or the victim was unconscious, you will register as a tier three offender, meaning you will be registered for life. 

  1. Sodomy with a Minor

Under California Penal Code 286, it is a crime to engage in sodomy with a minor. Sodomy, also known as the sexual contact that takes place between the penis of one individual and the anus of another individual. Any penetration, no matter how slight, is considered as sodomy. Sodomy with a minor is charged depending on the facts of the case. It is mostly charged as a California wobbler offense, meaning it can be charged either as a misdemeanor or a felony.

If convicted as a misdemeanor, you can be subjected up to one year in county jail, informal probation, and up to a maximum of $1,000 in fines. For a felony conviction, you can receive up to 16 months, formal probation or two to three years in the California State Prison and up to a maximum of $10,000 in fines. Regardless of whether you are charged as a misdemeanor or a felony, if convicted, you will need to register as a California sex offender. The prosecutor will have to prove that you engaged in sodomy with a minor, which violates Penal Code 286(b)(1), Penal Code 286(c)(1) or Penal Code 286(b)(2). The act of penetration is enough to be charged with sodomy even if there was no skin to skin contact or ejaculation.

Penal Code 286(c) refers to if you are an adult over the age of 21 years and you engage in sodomy with a minor under 14 years, you will be charged as a felony and can not be reduced to a misdemeanor. If found guilty, you will be subjected to three, six, or eight years in the state prison. You will be required to register as a sex offender for life and subjected to a strike under California's Three Strike's Law.

Sodomy allegations are easy to make but difficult to prove. Penal Code 286 PC requires no proof of ejaculation, and only the slightest penetration is enough to be charged with sodomy with a minor. Thus the victim could claim that you sodomized him/her with little to no physical evidence to support it. The defense can also argue you honestly believed the minor was an adult.

  1. Child Endangerment

You can also be charged with California's criminal child endangerment under Penal Code 273a PC. It punishes someone who willfully exposes a child to pain, suffering, or danger. You can be charged under PC 273a, even if the child does not suffer an injury. Because no physical harm as evidence, you can be charged even if you are innocent. Penal Code 273a states that any adult who has a minor under his or her care can be charged with child endangerment. Judges can sentence you to probation for a child endangerment conviction but will impose certain conditions such as mandatory counseling or restraining orders.

  1. Rape

California Penal Code 261 defines rape as having sexual intercourse with another person without their consent. The victim may have been threatened, forced, or deceived into having sexual intercourse. Although Penal Code 261.5 states that a minor can not give legal consent, when one forces themselves on a minor, then the case will be charged as rape and not statutory rape. Rape is not charged as a wobbler, as convictions can only be considered as a felony. If found guilty, you will be subjected to up to 8 years in California state prison. You can also receive a strike under California's three-strikes law and be required to register as a sex offender for a lifetime or as a tier-three offender.

False allegations are also common in rape charges as they might be motivated by jealousy, revenge, or a bad break up. If a former partner you dated while a minor accuses you of rape, you can be charged with both Penal Code 261 rape and statutory rape.

Contact a California Criminal Lawyer Near Me

Facing a statutory rape charge can result in both severe penalties and implications on your livelihood, rights, and freedom. Laws are bound to change, and numerous defenses may have relevance to statutory rape charges. A lawyer can assess the strength of the prosecution's case against you and help come up with any arguments that might apply to your case. An experienced criminal defense lawyer can also negotiate a lesser charge in a plea bargain. If the case goes to trial, the lawyer can help reduce your sentence or get your charges entirely dismissed. It is, therefore, vital that you hire the services of a skilled and dedicated criminal defense attorney. If you are in San Jose, California, you can contact the California Criminal Lawyer Group at 408-622-0204 to receive the best legal representation.