February 8, 2011 By Stephen Klarich

In Orange County statutory rape is a punishable offense that occurs when a person engages in unlawful sexual intercourse with a minor under the age of 18. For the purposes of this section, the act of sexual intercourse is achieved by any amount of penetration – no matter how slight – even if there was no ejaculation. This crime will be charged regardless of whether the sexual intercourse was consensual. Since a minor has not yet reached the legal age of consent in California, consent is not a defense.

A violation of Penal Code 261.5 is a “wobbler” in that it can be prosecuted as either a felony or misdemeanor. If the victim is not three years younger or older than the alleged perpetrator, the offense will likely be prosecuted as a misdemeanor. However, if the victim is more than three years younger than the perpetrator, the offense can be charged as either a felony or misdemeanor. This ambiguity occurs also in situations in which the perpetrator is at least 21 years of age and the victim is under 16.

When deciding whether to prosecute the offense as a felony or misdemeanor, the prosecution will consider other factors such as the specific facts of the case and the perpetrator’s criminal history. A perpetrator, for example, with no prior criminal history, and who is accused of having consensual sexual intercourse with a minor without the use of force or threat, may likely face a misdemeanor charge.

If convicted of misdemeanor statutory rape, the punishment includes a sentence of up to one year in county jail and a maximum fine of $1,000. A felony conviction may result in a sentence between 16 months and four years in state prison with a maximum fine of up to $10,000. If the rape victim had sustained great bodily injury as a result of the sexual intercourse, the sentence is increased to an additional three to five years in state prison.

A conviction for either felony or misdemeanor statutory rape, however, will not result in an obligation to register as a sex offender in California pursuant to Penal Code 290. Rather, it is triggered by a related offense: lewd acts with a minor (child molestation) under Penal Code 288.

An allegation of statutory rape is a serious matter that requires the legal knowledge and expertise of a criminal defense attorney. An experienced attorney can raise a number of viable defenses on your behalf. Although your attorney would not be able to argue consent, it is possible to argue that there were sufficient grounds to support a reasonable, good-faith belief that the victim was of consenting age.

At Wallin & Klarich, our criminal defense attorneys have been taking on statutory rape cases for over 30 years. We will work diligently toward achieving the best possible results in your case. Call us today at (877) 466-5245 we will be there for you when you call.

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