April 22, 2014 By Stephen Klarich

Can an Emancipated Minor Legally Consent to Having Sex?

In the state of California, is it generally understood that it is illegal to engage in sexual intercourse with a minor under the age of 18, even if the minor gave consent. Engaging in sexual intercourse with a minor constitutes statutory rape, which is punishable by jail time, fines and registration as a sex offender upon conviction. But what if the minor is emancipated from his/her parents? In this case, slightly different laws would apply.

What is Emancipation?

Emancipated minor in California.
You must be at least 14 years old to become an emancipated minor.

A minor who is legally emancipated takes responsibility for himself/herself before he/she turns 18, or legally becomes an adult. In the state of California, a minor must be at least 14years old to be emancipated. A minor can obtain emancipation from his/her parents or legal guardians by getting married, joining the military or obtaining a court’s permission. However, the minor must notify his/her parents or legal guardians that a petition for emancipation has been filed or explain to the court why he/she does not want to notify them.

Emancipated minors are no longer under the care and control of their parents. Instead, emancipated minors pay their own bills, sign legal contracts, and choose where they want to go to school. However, they are still prohibited from drinking alcohol, quitting school and voting before the ordinary legal age.

Emancipated Minors and Consent

Under California Penal Code Section 261.5, a minor, emancipated or not, cannot legally consent to sex. In the state of California, the age of consent for sex is 18 years of age. A minor, emancipated or not, cannot use consent as a valid legal defense in a statutory rape case.

California Penal Code Section 261.5 also states that two minors, emancipated or not, who engage in sexual intercourse constitutes  statutory rape. Even if both minors consented, they could still face statutory rape charges because California’s age of consent is 18. However, a charge could only be made if it came to the attention of law enforcement officials.

Emancipated Minors and Marriage

A minor can only legally consent to sex if he/she is legally married. By getting married, the minor becomes legally emancipated from his/her parents or guardians. For a minor to legally marry in the state of California, a court order must be obtained to emancipate the minor and the minor’s parents or guardians must consent to the marriage.

Call Wallin & Klarich Today

If you or a loved one is facing a charge of statutory rape, whether you or the alleged “victim” is or was an emancipated minor or not, it is critical that you speak to an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling statutory rape charges in Southern California. Our attorneys will fight to get you the best possible outcome in your case.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich Southern California criminal defense attorney near you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

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