Is it Statutory Rape When Two Minors Have Sex? (PC 261.5)
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.
So just to be sure I understand…if a person has sex with another person under the conditions that qualify as a statutory situation, but he wasn’t having sex for the purpose of sexual gratification, then he may not have to be on the registry? Maybe someone can explain under what circumstances a person would have willing sex with a mutually willing partner and sexual gratification would not be at least a component of the activity.
Hi @ShellyStow:disqus,
Although sex offender registration is not required as a penalty for those who are convicted of statutory rape, the judge has the power to order registration if the defendant committed the offense for sexual compulsion or sexual gratification. This means that almost any offense related to sex could require registration, but the law also exists to allow judges to require registration for those accused of other crimes that do not involve the act of sex.
Hope this better explains the law for you.
Thanks!
Thank you, but it seems to make it more arbitrary. So a person can be compelled to register as a sex offender for committing a crime that is not a sexual crime? I knew that was sometimes applied to kidnapping when there was no sexual motivation; any others?
It certainly is more arbitrary because it is up to a judge’s discretion. Essentially what this law means is that a judge can order sex offender registration even if your crime didn’t involve any sort of penetration as long as the crime was done for “sexual compulsion or sexual gratification.”
Kidnapping is a great example of this. Some cases of kidnapping involve no sexual motivation, but if the kidnapping was done for purposes of sexual compulsion or sexual gratification, you could be required to register.
Mr. Wallin, do you think people are asking questions here to see what they can get away with? How do you keep that from happening? Hopefully Shelly isn’t planning any kidnapping anytime soon.
I should be required to register, I am a sick SOB. If you only knew what I have gotten away with. If bones could tell tales.
Let me get this straight if I am 30 and I have sex with a girl who is 17 years and 364 days olds I risk a case of statutory rape but if I wait one more day for her to hit 18 I’m free of sin, correct?
Correct, she becomes an adult capable of making her own decisions or choices at midnight of the day she turns 18!
Legally. But still gross.
One of my Dad’s former friends could never find anyone his age to date, so he started “volunteering” at a church’s youth group. And of course, at 28 years old he started dating a 16 year old. Her parents didn’t care, the church apparently did nothing, they got married right after she turned 18… now they are divorced after she cheated on him twice, and when we last heard from this sad family, the only daughter had been molested by at least one of her brothers.
Age is not always just a number.
Free of sin? You should probably talk with God about that one.
It is really gross and potentially worrying that so many people want to find out how close they can get to breaking a law, without actually breaking it. Joel, your example seems like you are saying, “Well gee, this person will be of age to legally consent in 23 hours, why not just do it now?”, which has to be answered with a hard THAT IS ILLEGAL. Because if you say “This is about hours!”, then we all end up on a slippery slope- and when it is about CHILDREN, always err on te side of doing things right. Unless you want to be responsible for all the things that go along with a 30 year old man who has sex with a teenager. At my former highschool, anyone who hung around and was out of school, they got laughed at. Grown men should grow up and date and marry grown ladies.