The criminal justice system functions best when people understand what is and what is not a crime. Unfortunately, laws are not always so clear. The perfect example of this is the crime of statutory rape.

Statutory rape occurs when a minor engages in sexual intercourse. Minors cannot legally consent to sex, so it is considered statutory rape when they engage in this activity. So, should a minor be prosecuted for a crime when he or she has sex with another minor? What if a minor has sex with his or her significant other who is 18?

The Problem of Consent

One of the confusing aspects of this crime is the fact that it is considered rape. Many people associate “rape” with non-consensual sex, but the victim is typically a willing participant in sexual intercourse in a statutory rape case.

The reason statutory rape is a crime is because California law does not give minors the legal authority to consent to sex. Lawmakers consider minors to be unable to understand the importance of the decision to have sex, so the law takes the decision out of their hands until they turn 18 years of age.

Statutory Rape (California Penal Code Section 261.5)

Under California Penal Code Section 261.5, it is a crime for any person to have sexual intercourse with any other person who is both under the age of 18 and who is not the spouse of the person accused of the crime.

Notice the law says that it is illegal for any person to do this. This includes cases where the persons involved in the sexual intercourse are both under the age of 18 and cases involving one minor and one adult.

However, when both parties are under the age of 18, it is uncommon for either of them to face statutory rape charges. The reason is that it is difficult to determine which of the two willing parties is to be considered the victim and which is the perpetrator. In reality, the law says that they are both criminals and victims, so prosecutors will likely decline to charge either person with the crime. Instead, the two minors may be asked to visit their local probation department to discuss the dangers of sex before adulthood.

However, if you are 18 and you have sex with your girlfriend or boyfriend who is younger than you, you are likely to be charged with statutory rape.

Penalties for Statutory Rape (PC 261.5)

This crime is a wobbler offense, meaning you could be charged with a misdemeanor or a felony depending on the facts of the case. The penalties for statutory rape vary depending upon the age difference between you and the alleged victim. For example, if you are charged with misdemeanor statutory rape, you face up to 364 days in county jail and a fine of up to $1,000. An 18-year-old who has sex with his or her 17-year-old boyfriend or girlfriend will likely face misdemeanor charges.

If you are not over the age of 21 and the alleged victim is 16 or older, you could be charged with a felony. The penalties for this crime include up to three years in county jail and fines of up to $10,000.

If you are 21 or older and the alleged victim was under the age of 16, you could be sentenced to up to four years in state prison and a fine of up to $10,000.

In addition to the above, statutory rape convictions carry civil penalties. If you are convicted of statutory rape and you are age 18 or older, you could be forced to pay between $2,000 and $25,000 in civil penalties.

Will I Have to Register As a Sex Offender for Statutory Rape?

Unlike other sexual offenses, a statutory rape conviction does not automatically require you to register as a sex offender. However, depending on the circumstances of your case, the judge has the power to impose this requirement on you under California Penal Code Section 290.006.

In order to impose this additional penalty on you, the court must find at the time of conviction or sentencing that you committed the offense as a result of sexual compulsion or for purposes of sexual gratification. If the judge decides your case meets this criteria, you could be required to register as a sex offender for life.

Contact the Sex Crimes Defense Attorneys at Wallin & Klarich Today

Facing a charge of statutory rape is a serious matter and you will need the help of an experienced sex crimes defense attorney to help you obtain a favorable outcome in your case. At Wallin & Klarich, our skilled criminal defense attorneys have been successfully defending clients facing rape charges for more than 35 years. Let our knowledgeable attorneys help you now.

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

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

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