Consent may be a defense to sex crimes. However, some individuals are not considered able to consent to sex under the law. For those individuals, even if they explicitly agree, their agreement is not legally valid. For example, minors, the mentally disabled and unconscious or intoxicated people (even if they willingly became intoxicated) typically cannot provide valid consent. Statutory rape or date rape charges may result.

In California, anyone under the age of 18 is under the age of consent; and an adult who engages in sexual intercourse with some under 18 years of age can be prosecuted under California Penal Code Section 261.5, which reads:

Statutory Rape
Consent is not a valid defense.

(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 in the state prison.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age 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 in the state prison for two, three, or four years.

This crime, a stated above, can be tried as a felony or a misdemeanor depending on the age difference.  If you or a loved one have been charged with Statutory Rape, contact the experienced Southern California criminal defense attorneys at Wallin & Klarich.  We’ve have been helping criminal defendants for over 30 years.  Call us at (877) 466-5245 for a free phone consultation.

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