September 21, 2017

The crimes of statutory rape and rape are often confused. Although they both involve sexual acts, these crimes are very different under California Law. Let’s examine how the crime of rape is different than the crime of statutory rape.

Defining the Crimes of Rape and Statutory Rape

Under California Penal Code Section 261, rape is a very serious crime that requires the accused to have engaged in “nonconsensual sexual intercourse accomplished by means of threat, force, or fraud.”

To be convicted of rape, the prosecution must prove that you engaged in sexual intercourse with the alleged victim and the victim did not consent to that sexual act. It could be that the victim said no to sexual intercourse and you used force or fear to make the victim perform the act, or you tricked or coerced the alleged victim to perform the act.

This is very different from statutory rape. Under California Penal Code Section 261.5, statutory rape is engaging in intercourse with any person under the age of 18.

So, in a statutory rape case, the alleged victim could have been a willing participant in the sexual act that led to the criminal case. However, under California law, minors are not legally permitted to consent to sexual activity. Therefore, if you engage in sexual intercourse with a minor, you could face statutory rape charges.

The major difference between rape and statutory rape is that the element of consent is irrelevant in statutory rape, but it is key in cases involving rape.

Punishment for Rape and Statutory Rape

Statutory rape is punished much less harshly compared to rape because the law recognizes that statutory rape typically involves willingness by the victim. Unlike rape, statutory rape can be charged as misdemeanor or a felony. How you will be charged depends upon the circumstances of your case.

The penalties for statutory rape range from less than one year in county jail to a maximum of four years in state prison.

On the other hand, rape is punished more severely because it is always committed against the will of the victim. Rape is a felony offense, and it typically is considered a “violent crime.” It carries a sentence of up to eight years in state prison.

Contact the Rape Attorneys at Wallin & Klarich Today

If you have been accused of rape or statutory rape, you should contact an experienced rape defense attorney immediately. At Wallin & Klarich, our skilled lawyers have been successfully defending clients who have been accused of rape for over 38 years. Our attorneys can use their experience and knowledge to help you obtain the best possible result in your case.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located throughout Southern California.

Contact our offices today at (877) 4-NO-JAIL or (714) 386-7124 for a free phone consultation. We will be there when you call.


Is statutory rape a felony or misdemeanor?

Statutory rape [PC 261.5] is considered a “wobbler crime” in California. This means that it is in the discretion of the prosecuting attorney who will decide whether to file the case as a felony or misdemeanor.

What is the definition of attempted rape?

The crime of attempted rape [PC 261] is when a person attempts to engage in sexual intercourse with another person, without the consent of the other person.

You do not need to have engaged in sexual intercourse to be convicted of attempted rape. If you take steps to initiate intercourse with another person by force, fear, or coercion, you can be convicted of attempted rape if it can be proven that it was your specific intent at the time to engage in sexual intercourse. 

You can also be convicted of attempted rape if it can be proven that you attempted to engage in sexual intercourse with the knowledge that the other person could not legally consent due to their level of intoxication or if the other person was unconscious at the time you made the attempt at sexual intercourse.

Is it statutory rape if both people are minors?

The crime of statutory rape can be committed even when both parties involved in sexual intercourse are under the age of 18.

How can I fight a rape charge?

There are many legal defenses to a rape charge. Most often there are no witnesses to the alleged crime of rape other than the accuser and the accused.

This means that the credibility of the accused is critical to having a successful outcome. This means that if the person accused has no criminal record, our rape defense lawyer can help convince the jury that our client is being truthful when he testifies and he did not attempt to commit an act of rape.

What is the difference between rape and sexual battery convictions?

The difference between rape and sexual battery is that to be convicted of rape the prosecution must prove that there was an act of “penetration” by the penis into the vagina of the complaining witness.

A person can be convicted of sexual battery by having physical contact with the accuser with the specific intent of sexual arousal of him/herself or the accuser without penetration taking place.

Can a minor be charged with rape?

Yes, a person under age 18 can be charged and convicted of rape. Depending upon the age of the minor, they could be charged in either adult or juvenile court. The purpose of adult court is punishment while the purpose of juvenile court is primarily rehabilitation.

Is it statutory rape if both persons are under 16?

A person can be convicted of statutory rape even if both the accuser and the accused are under 16 years of age.

Is it still statutory rape if there was consent?

Even if the person you have sexual intercourse with “consents” to the sexual act it is still a crime if they are under 18 years of age at the time when the incident occured. The law is clear that a person under 18 years of age cannot consent to sexual intercourse.

Can sexual battery be considered rape?

Some people confuse sexual battery [PC 243.4] with the crime of rape [PC 261]. These crimes are different in terms of the activity that must occur for a conviction in each case as well as the punishment for each crime. 

To commit sexual battery a person need not engage in an act of sexual intercourse. You can be found guilty of sexual battery by having any contact with the accuser against their will if your conduct is motivated by a sexual interest in the accuser.  If you are found guilty of sexual battery as a felony you face up to 4 years in jail. If the sexual battery conviction is for a misdemeanor you face up to one year in county jail. 

To be convicted of rape in California you must have “penetrated” the vagina of the alleged victim against the will of the accuser. In addition the punishment for rape is much more serious than the punishment for a conviction for sexual battery. If you are convicted of the crime of rape you will have a felony conviction on and you can be sentenced to up to 8 years in prison. You will also have a “strike” on your record.

You will have to register as a sex offender in California per Penal Code Section 290 if you are convicted of either rape or sexual battery.

What you should do if you are accused of statutory rape [PC 261.5]?

If you are accused of statutory rape you should immediately contact our law firm before speaking to anyone about the charges. This means that you should refuse to speak to anyone from law enforcement about the facts of the case. We can discuss the case with the police but anything you say to the police can be used against you in your case. Our law firm has over 35 years of experience helping people when facing such serious charges.

When you are accused of statutory rape you need to complete a series of questions that our law firm will submit to you which will explain your relationship with the alleged victim. You will also be asked why you believe the accuser is falsely accusing you of this serious crime.

In the event you are in fact guilty of the crime of statutory rape you should share that information with our law firm so we can direct you as to the best strategy to employ to get the best result possible in your case.

What are possible defenses against statutory rape [PC 261.5]?

The main defenses to a statutory rape charge is that you did not realize that the person was under 18 years of age. However, for that to be a “winnable defense” you will need to point to specific reasons why you believed the person was at least 18 years of age. These reasons could include

  • The accuser told you she was 18 or older.
  • The accuser told you she was in college.
  • The accuser showed you physical evidence such as a driver’s license or student identification that indicated she was over 18 years of age.
  • You met the person on a website where she posted that she was over 18 years of age.
  • The website you were using to meet the alleged victim advertised that all of the women on the website were 18 years of age or older.

It will be up to the jury as to whether your “belief” was a reasonable belief and if they so conclude you should be found not guilty.

The other defense to a charge of statutory rape is that you did not have sexual intercourse with the alleged victim.

The success of this defense will depend upon the credibility of the accused and the accuser as well as all other evidence presented at the trial.

What happens if you are accused of statutory rape?

When someone is accused of statutory rape they will likely be arrested by a police officer. In some cases, our law firm can ask that you be “surrendered” at the courthouse or police department and then released after posting bail. In some cases, we may be able to have you released without having to post bail (called released on your own recognizance). After you are released then the court will set the first court hearing. You will want to have hired our law office as soon as you find out you are being accused of this crime so we can guide what you do and prepare an effective defense strategy

Can an 18 year old be charged with statutory rape?

Yes, an 18 year old can be charged and convicted of statutory rape if the prosecution can prove all of the elements of the crime.

What should you do if you are falsely accused of rape?

If you have been falsely accused of rape you need to immediately hire our law firm. We will provide you with the “homework” where you will tell us all about the facts of the case as well as a “social history” which tells us all of the positive things about your background. You also will provide us with a list of character witnesses who can provide us with letters as to your honesty and truthfulness. 

You should not speak to anyone from law enforcement. You should leave your phone on “message mode” and if a police officer wants to speak to you notify us and we will make contact with the police to deny your guilt.

Is statutory rape the same as rape?

Statutory rape and rape are very different crimes. 

Rape requires force, fear of other intimidation in order to complete the act of sexual intercourse. 

Statutory rape is merely the act of having consensual intercourse with someone who you know or should have known is under 18 years of age.


Wallin & Klarich has been defending Southern California for over 38 years in their time of legal need. Our sex crime defense attorneys have received countless stellar 5-star reviews on Yelp from the happy clients we have represented throughout Los Angeles, Orange, Riverside, San Bernardino, and San Diego Counties. We have received an A+ accreditation from the Better Business Bureau, voted TOP OC Lawyers in OCMetro, a 10/10 Avvo rating, and boast a 5.0 out of 5.0 score from Lawyers.com.

If you or a loved one has been accused of Rape or Statutory Rape, there is no time to waste. Call the Wallin & Klarich Law Firm today. With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is a Wallin & Klarich attorney experienced in sex crimes defense near you.

Author:Stephen D. Klarich

Stephen D. Klarich is one of the most highly respected sex crime attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Klarich a premiere Southern California attorney. Mr. Klarich founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Klarich has been successfully representing clients for more than 38 years. Clients come to him for help in matters involving sex offenses, murder, violent crimes, misdemeanors, felonies and other sex crimes. View all posts by Stephen D. Klarich.

Contact Us

  • This field is for validation purposes and should be left unchanged.