Minors Cannot Legally Consent to Sex (California PC 261.5)

Statutory rape is very different from rape in that it does not involve a forced sex act upon another person. There is no violence involved and you may even be very close to the alleged victim.

Under California Penal Code Section 261.5, statutory rape is simply engaging in sexual intercourse with a minor who is under the age of 18. The elements of a statutory rape charge are:

• You had sexual intercourse with the victim;
• You and the victim were not married at the time of the sexual intercourse; and
• The victim was under 18 years of age at the time of intercourse.

In this situation, the alleged victim may have even consented to engaging in sexual intercourse with you. However, unless you are married to the minor, it is still illegal. Let’s examine how California statutory rape laws define “consent.”

California Consent Laws

The age of consent in California is 18. This means that it is illegal for you to engage in sexual intercourse with a person under the age of 18, unless that person is your spouse. Even if the minor consented to having sex, it is still illegal. Under California law, a minor under the age of 18 cannot legally consent to having sex.

But what if you and your partner are both minors? This is still considered statutory rape under California Penal Code Section 261.5. Even if you both consented to engaging in sexual intercourse, you can each be charged with having unlawful sex with the other person if you are under the age of 18. Of course, it would only be charged if somehow it came to the attention of law enforcement.

Consent is not a valid legal defense against statutory rape charges. Whether you are above the age of 18 or not, if the other person is a minor, sexual intercourse is illegal. The only exception is if you are married to that person. In order to marry a minor in California, the minor’s parents must consent and a court order must be obtained to emancipate the minor.

It is not up to the person you had sex with to press charges. Often the person’s parents or the District Attorney will press charges.

Penalties for Statutory Rape

If you are convicted of statutory rape, the penalties can vary. In California, statutory rape is considered a “wobbler,” meaning it can be charged either as a misdemeanor or a felony depending on the circumstances of your case:

• If you engage in sexual intercourse with a minor who is not more than three years younger than you, you could be charged with a misdemeanor;

• If you engage in sexual intercourse with a minor who is more than three years younger than you, it could be charged as a misdemeanor or a felony. Punishment includes up to a year in county jail and up to $10,000 in fines;

• If you are 21 years or older and you engage in sexual intercourse with a minor who is under the age of 16, you could be charged with a misdemeanor or a felony. A felony conviction is punishable by two, three or four years in jail and up to $25,000 in fines.

Valid Defenses to Statutory Rape Charges in California

The attorneys at Wallin & Klarich have successfully raised the following defenses in prior statutory rape cases to win a not guilty verdict for our clients:

• You had good faith to believe that the alleged victim was 18 years of age or older;
• You were legally married to the alleged victim;
• You did not actually engage in sexual intercourse (you cannot be convicted under PC 261.5 for oral sex or other forms of foreplay); and
• The person you had sexual intercourse with was not under the age of 18 at the time.

Contact Wallin & Klarich if You Have Been Accused of Statutory Rape

Being accused of statutory rape can often seem like an unfair situation. You and the alleged victim may have even been very close at the time the act occurred. The attorneys at Wallin & Klarich have been successfully defending our clients accused of statutory rape for over 30 years.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, one of our skilled and knowledgeable attorneys can help you get through this difficult time.

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