Introduction

Unlawful Consensual Sex with a Minor (aka “Statutory Rape”) (California Penal Code section 261.5) in California criminalizes your having sex with anyone younger than 18 unless you two are married to one another. An unmarried minor in California cannot legally consent to sex. If the two people involved are within three years of age of one another, the crime is a misdemeanor in California. With more than a three-year age difference, the adult perpetrator in California can be charged with a felony and may receive a prison sentence of up to four years.

Please keep in mind that in California, unless the purported victim is your legal spouse (i.e., husband or wife), then regardless if you were also a minor at the time, he/she is not legally capable of giving consent to sexual intercourse with you.

Notwithstanding, statutory rape is considered a “Wobbler” (California Penal Code section 17(b)), which means that the DA’s Office can charge you with either a felony or a misdemeanor, depending on the circumstances. For example, if both you and the purported victim were minors at the time of the intercourse, then you’ll be charged with a misdemeanor.

The specific nature of the charge will also affect the statute of limitations, which is one and three years, respectively, for misdemeanor and felony charges.

History

The first state law criminalizing sexual intercourse with underage females was codified in the California Penal Code in 1850. Notably, however, this initial statute only addressed those age nine or younger. It wasn’t until 39 years later (1889), that this law was changed to prohibit intercourse with females age 13 or younger. Nine years after that (1897), the law was changed again to raise the legal age of consent to sixteen. It wasn’t until 24 years later (1913), that the age threshold was increased to 18.

Finally, in 1994, California Penal Code section 261.5 was changed to allow women to be prosecuted thereunder.

Emergency Bulletin re Non-Violent Sex Offenders Currently Incarcerated in State Penitentiaries

If you or someone you love are currently imprisoned because of a non-violent sex conviction such as statutory rape, then you will be thrilled to learn the following:

On Dec. 29, 2020, our state Supreme Court unanimously upheld numerous Courts of Appeal opinions wherein the justices held that excluding such prisoners from early parole eligibility is patently unconstitutional.

This was the culmination of a six-year trajectory which began in 2014 when then-Governor Jerry Brown signed off on a criminal justice reform ballot advocating for early parole eligibility for all non-violent prisoners. Although Gov. Brown later claimed that the ballot – which was approved by a two-third’s majority of California voters – never intended to include sex offenders.

However, as all the Courts of Appeal and then the California Supreme Court unanimously held, because the ballot did not explicitly exclude sex offenders, then neither the California Department of Corrections nor lower (superior) courts had the unilateral right to do so.

See: washingtonexaminer.com.

Sex Crimes – Statutory Rape -- Pre-Files/Early Dismissals

The Los Angeles Defense Attorney Law Firm (LADALF) has enjoyed considerable success in favorably disposing of Unlawful Consensual Sex with a Minor (aka “Statutory Rape”) cases (California Penal Code section 261.5) at early stages of the criminal process. Specifically, we have been able to convince the sex crimes detective investigating the case to either drop the investigation and to otherwise refrain from referring the matter to the prosecutor’s office.

Alternatively, we have been able to convince the prosecutor to either not file charges or to dismiss the case shortly after doing so.

Occasionally, in certain worst-case scenarios, we have been able to resolve the case by having the client plead to a non-sex-crime misdemeanor such as:

Simple Assault (California Penal Code section 240);

Simple Battery (California Penal Code section 242);

Annoying a Child Under 18 (California Penal Code section 647.6);

Contributing to the Delinquency of a Minor (California Penal Code section 272).

California Statutes – Sex Crimes -- Statutory Rape

California Penal Code section 261.5(a) -- Unlawful (Consensual) Sexual Intercourse with a Minor

As stated above, you can be charged with this crime so long as the purported victim is 17 years old or younger, even if you are also a minor. If you, too, are under 18, then you’ll only be charged with a misdemeanor.

California Penal Code section 261.5(b) -- Unlawful Sexual Intercourse: Minor within Three Years of Your Age

If the purported victim isn’t more than three years younger than you, then you’ll only be charged with a misdemeanor.

California Penal Code section 261.5(c) -- Unlawful (Consensual) Sexual Intercourse: Minor More than Three Years Younger than You

If the purported victim is more than three years younger than you (even if you’re a minor also), then this will be considered to be a “Wobbler” (California Penal Code section 17(b)).

In other words, the DA’s Office can charge you with either a misdemeanor or felony, depending on the specific facts of the case.

California Penal Code section 261.5(d) -- Unlawful Sexual Intercourse with a Minor: You’re 21 or Older and Victim is Under 16

This will also be considered a Wobbler.

Defenses to Sex Crimes Charges -- Statutory Rape

The following defenses will defeat the foregoing charges (or, alternatively, mitigate them in certain situations), according to the California Judicial Council’s Criminal Jury Instructions (“CALCRIM”):

  1. The purported victim was actually 18 years or older at the time of the alleged incident;

  2. You didn’t actually have intercourse with the purported victim (however, if you did engage in oral copulation or some other sexual activity/contact, you will likely be charged with another crime, such as Oral Copulation with a Minor (California Penal Code section 287);

  3. You were legally married to him/her at the time of the alleged incident;

  4. You were 18, 19, or 20 years old at the time of the alleged incident (mitigation);

  5. The purported victim was 16 or 17 at the time (same);

  6. He/she was a minor but not more than three years younger than you (same);

  7. You reasonably believed that the purported victim was an adult (e.g., he/she showed you what appeared to be an authentic driver’s license). This is known as a “mistake of fact” defense (i.e., you had a “good faith” belief that he/she was not a minor).

See CALCRIM number 1070 (“Unlawful Sexual Intercourse: Defendant 21 or Older -- Pen. Code § 261.5(a) & (d)”);

CALCRIM number 1071 (“Unlawful Sexual Intercourse: Minor More Than Three Years Younger -- Pen. Code § 261.5(a) & (c)”);

CALCRIM number 1072 (“Misdemeanor Unlawful Sexual Intercourse: Minor Within Three Years of Defendant’s Age -- Pen. Code § 261.5(a) & (b)”);

CALCRIM number 1100 (“Sexual Penetration With Person Under 14 -- Pen. Code § 289(j)”);

CALCRIM number 1101 (“Sexual Penetration With Minor: Defendant 21 or Older -- Pen. Code § 289(i)”); and

CALCRIM number 1102 (“Sexual Penetration With Person Under 18 -- Pen. Code § 289(h)”).

Sex Crimes Convictions – Statutory Rape -- Misdemeanors

California Penal Code section 261.5(a) -- Unlawful (Consensual) Sexual Intercourse with a Minor

As stated above, if you were both minors at the time of the alleged intercourse, you’ll be charged with a misdemeanor, and if you’re convicted, you’ll get a maximum of 12 months in the county jail.

California Penal Code section 261.5(b) -- Unlawful Sexual Intercourse: Minor within Three Years of Your Age

Ditto.

California Penal Code section 261.5(c) -- Unlawful (Consensual) Sexual Intercourse: Minor More than Three Years Younger than You

If convicted of a misdemeanor for this offense, you’ll face up to one year in jail.

If the conviction is for a felony, you’ll be sentenced under California Penal Code section 1170(h), which entails a range of 16, 24, or 36 months in a state penitentiary.

California Penal Code section 261.5(d) -- Unlawful Sexual Intercourse with a Minor: You’re 21 or Older and Victim is Under 16

If it’s a misdemeanor conviction, the sentence will not exceed 365 days in jail. If it’s a felony conviction, the prison term range will be 24, 36, or 48 months.

Sex Crimes – Statutory Rape -- Registration Requirements

Neither a misdemeanor nor even a felony conviction for Unlawful Consensual Sex with a Minor/Statutory Rape will require you to register as a sex offender, pursuant to California’s Sex Offender Registration law (California Penal Code section 290).

Examples of Sex Crimes – Statutory Rape -- Felonies

Long Beach teacher’s aide gets time served (19 months) for sexual relationship with 17-year-old girl

During a two-month period in early 2019 (Jan. & Feb.), Long Beach resident Anthony Sutton (thirty-two), a teacher’s assistant, allegedly engaged in sexually activities with a female minor (seventeen) at a Long Beach school almost immediately after he began working there. For reasons that remain unclear, the girl reportedly notified authorities of the relationship, including that she had videotaped them having intercourse on at least several occasions at his local residence.

As a result, in April, he was arrested on suspicion of, and charged with, the following felonies:

Four counts of Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5) (a felony because he was more than three years older than the girl);

Four counts of Oral Copulation with a Minor (California Penal Code section 287);

Four counts of Contacting a Minor with the Intent to Commit a Lewd Act (California Penal Code section 288.3); and

One count of Continuous Sexual Abuse of a Child (California Penal Code section 288.5).

Maximum possible sentence: eleven years in a state penitentiary.

See: da.lacounty.gov.

On November 10, 2019, Sutton accepted a nolo contendre plea to three felony counts of Unlawful Sex with a Minor in consideration for the other charges being dismissed. According to a spokesperson for the DA’s Office, prosecutors agreed to the deal because they didn’t believe they could prove beyond a reasonable doubt that Sutton did not believe that the purported victim was a minor.

He was immediately released with time served (he had spent more than 19 months in jail awaiting trial). He was also required to complete 60 months of formal probation (during which he was prohibited from working with minors, and from otherwise being around them without supervision) and adhere to a decade-long stay-away order. Notably, he was not required to register as a sex offender.

See: newsbreak.com.

A Sampling of Sex Crimes Cases -- Statutory Rape -- Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

As previously indicated, the Los Angeles Defense Attorney Law Firm (LADALF) has represented numerous individuals in cases involving Statutory Rape.

Conversely, we have also been able to negotiate extremely rare pleas to Statutory Rape in prosecutions for Forcible Rape (and related charges) where our clients were facing life sentences, but where following the plea, they were immediately released with no further incarceration. The following are several examples of these pleas:

Facing Life -- Gang Rape of Minor & Aggravated Kidnapping – all felonies dismissed

People v. J.C. (Van Nuys courthouse -- September 2017):

Charges against client: twelve felony counts for the following:

Forcible Rape in Concert (California Penal Code section 264.1(a));

Aggravated Kidnapping – Rape, Other Sex Offenses (California Penal Code section 209(b));

Forcible Oral Copulation (California Penal Code section 287);

Forcible Oral Copulation in Concert (California Penal Code section 287(d)); and

Forcible Sexual Penetration with a Foreign Object (California Penal Code section 289).

Allegations: Our adult male client plus five male co-defendants -- his friends (three adults and two 17-year-olds) -- were prosecuted for supposedly kidnapping by force and gang-raping a 16-year-old girl over the course of an entire weekend, during which they forced her to engage in a variety of depraved sexual activities.

Maximum sentence: life in prison for the adults, including our client.

Our representation: Our client, who was 19 years old, insisted that the girl had not only consented to each and every sexual act, but had been an eager and active participant. So we immediately delved into the girl’s background and online activities. We discovered that the girl had made similar false claims of forcible rape in the past, and that one of those defendants had actually gone to jail as a result.

Our private investigator then found out that the girl’s father was a violent gang member who had threatened to harm a potential defense witness in the current case. Shortly thereafter, we discovered that she had conjured up these lies in order to avoid her father’s wrath for repeatedly running away from home for weekends at a time.

Finally, after months of trying, we were able to convince a second frightened witness to turn over a video taken that particular weekend which proved that the girl had lied about every significant criminal allegation in this case.

Preliminary hearing: We thoroughly cross-examined the girl on the stand in order to pin down each and every one of her lies. We then played the video (in a closed courtroom, obviously), which confirmed each of these lies. During the same hearing, we argued a Motion to Dismiss (California Penal Code section 995) based on insufficient evidence to sustain all charges.

Result: The prosecutor dismissed all charges against the client and his five co-defendants in exchange for our client pleading no contest to a single misdemeanor count of Unlawful Consensual Sex with a Minor (California Penal Code section 261.5) without further jail time or sex registration. All six defendants went home free within 24 hours.

Lewd Acts on a Minor, a decade in prison, reduced to Unlawful Sex with a Minor, no further jail

People v. J.G. (LAX Courthouse -- February 2018):

Charges against client: One dozen felony counts -- Lewd Act with a Minor Under 14 (California Penal Code section 288). Maximum sentence: 10 years in a state penitentiary plus lifetime registration. Client’s prior lawyer was useless, doing nothing aside from asking for repeated continuances while conducting zero investigation and never once visiting client in jail.

Our representation: From our first day taking over the case, we exerted constant, overwhelming pressure on the prosecutor, including by filing multiple motions, such as a Motion to Dismiss based on the violation of the client’s speedy-trial rights. We also pushed relentlessly towards trial, forcing the prosecutor to (ineffectively) counter-punch. Finally, on the eve of trial, the Deputy DA made our client an outstanding offer. Ninaz then announced ready for trial (less than two months after being retained).

Result: The prosecutor dismissed all charges against the client in exchange for our client pleading no contest to a single misdemeanor count of Unlawful Consensual Sex with a Minor (California Penal Code section 261.5) without further jail time or sex registration.

The Los Angeles Criminal Defense Attorney Law Firm (LADALF)

For sixteen years (as of March 2021), LADALF’s visionary Ninaz Saffari has been practicing criminal defense law, including her first four years serving as a Deputy Public Defender for Los Angeles County. During these 16 years, she has defended numerous clients against almost every type of rape charge, including statutory rape, with outstanding results.