According to California Penal Code Section 261.5, you commit the crime of statutory rape when you engage in unlawful sex with a person below 18 years of age and who you are not married to. The charges apply irrespective of whether the sex was consensual or whether the minor initiated the sex. The crime of statutory rape can either be a misdemeanor or a felony. According to California law, the legal age of sexual consent is 18 years. Unlike some states in the U.S., California doesn't have a close in age exemption, also known as the Romeo and Juliet Law. If you face statutory rape charges, the consequences could be severe and impact your life negatively. You need an experienced criminal defense attorney to represent you and help you fight the charges. Darwish Law provides reliable criminal defense services in Santa Ana, CA. We can help you tailor a strong defense.
Elements of Statutory Rape
California law outlines several circumstances where it is illegal to have sex with a minor. The prosecutor must prove three elements of statutory rape to charge you under PC 261.5:
- You had sexual intercourse with another person — Any level of penetration qualifies as sexual intercourse, no matter how slight it was. Even if there was no ejaculation, the encounter still qualifies as sexual intercourse.
- At the time of the offense, you and the minor were not married to each other — Even if the minor was married to another person at the time of the crime, or if the minor used to be married, you will still face charges for the offense.
- The prosecutor should also prove beyond a reasonable doubt that the victim had not attained 18 years of age at the time of the offense — Under PC 261.5, the prosecutor doesn't have the burden to prove that you used force or violence while committing the crime. Also, the prosecutor doesn't have to prove that the minor didn't consent to your actions. This is the difference between the crime of rape and statutory rape under PC 261.5. In the crime of rape, the victim's lack of consent to sexual intercourse is a main element. In the crime of statutory rape, what matters is the age of the victim. Therefore, charges under PC 261.5 may apply even in a seemingly loving relationship.
The victim's age matters in a statutory rape crime, and the penalties for the offense vary depending on the victim's age. The younger the victim, the higher the applicable penalties. While determining the victim's age, the law considers the victim to be a year older at 12.01 a.m. on their birthday.
Minors Can Face Statutory Rape Charges
Even a minor below 18 years can face statutory rape charges. This might seem confusing because the defendant is a minor, but that's what the law outlines. In California, the state doesn't make it a priority to prosecute teenagers who have sexual intercourse with other teenagers. However, this doesn't mean that the prosecution is impossible. If a minor commits a violation under PC 261.5, they will be tried under California's Juvenile justice system. If a case under PC 261.5 is filed as a misdemeanor, the statute of limitations is one year. However, if the case is filed as a felony, the statute of limitation is three years.
The Punishment for an Offense Under PC 261.5
A statutory rape crime is a wobbler, meaning it can be a felony or misdemeanor. Several circumstances determine whether the offense is a felony or misdemeanor as well as the applicable charges.
- If the defendant or the perpetrator of the crime is not more than three years older than the victim, the offense is a misdemeanor.
- The offense will be either a misdemeanor or felony if the defendant is more than three years older than the victim.
- If the perpetrator is 21 or above and the victim is below 16 years at the time of the offense, the defendant will face misdemeanor or felony charges, with a high likelihood of felony charges.
In addition to the outlined factors, the prosecutor will consider your criminal history and your case's facts while deciding whether to charge you with misdemeanor or felony statutory rape.
Misdemeanor Statutory Rape Penalties
If the prosecutor charges the offense of statutory rape as a misdemeanor, the potential penalties include:
- Summary or misdemeanor probation, also known as informal probation
- Up to 1 year in county jail
- A fine, not exceeding $1,000
Felony Statutory Rape Penalties
The penalties for felony statutory rape include:
- Probation (informal or formal felony probation)
- Up to 1 year in county jail OR sixteen months, two years, or three years in prison. ** However, if the defendant is 21 years or older at the time of the crime and the victim was below 16 years, the jail time will be two years, three years, or four years.
- A fine, not exceeding $10,000
Unlawful Intercourse and Civil Penalties
In addition to criminal penalties, you may also face civil penalties for committing the crime of statutory rape. You may have to pay non-criminal fines in addition to paying criminal fines and serving time in jail. Only offenders under 18 years can be made to pay civil penalties.
Just like the criminal charges, the civil penalties will vary depending on the age difference between the defendant and the victim as follows:
- If the defendant is less than two years older than the victim, a civil penalty of not more than $2,000 will apply.
- If the defendant is at least two years older than the victim, a civil penalty of not more than $5,000 will apply.
- If the defendant is at least three years older than the victim, a civil penalty of not more than $10,000 will apply.
- If the defendant was 21 years or older at the time of the crime and the victim had not attained 16 years of age, a civil penalty of not more than $25,000 will apply.
You can't face statutory rape charges as long as the victim was 18 years or older at the time of committing the crime.
Whether You Have to Register as a Sex Offender
Do you have to register as a sex offender when you commit the crime of statutory rape?
The good news is that a conviction under PC 261.5 does not call for registration as a sex offender in California. Certain related sexual offenses like rape, lewd or lascivious acts with a minor require the convicted person to register as a sex offender.
Fighting Statutory Rape Charges
When the prosecutor accuses you of statutory rape, you can use several legal defenses to fight the charges. You should have a skilled criminal defense attorney to represent you and help you fight the charges. Some of the typical defenses that you can use to fight the charges are:
You Believed the Victim was Above 18 Years
You can't be guilty of statutory rape unless the alleged victim is below 18 years. Therefore, you can point out that you did not know that the victim was a minor below 18 years when you committed the crime. The Mistake of Age legal defense is almost the same as the Mistake of Fact defense. Factors that could indicate that a minor is above 18 years include:
- A person's general appearance, including their looks and their attire
- When the alleged victim makes a statement that they are above 18 years
- Where you met the victim-- if you met the victim at an adult party or venue, you might assume that he or she is above 18 years. For example, if you met the victim in a bar that requires people to present their IDs indicating that they are above 21 or older, you can use the Mistake of Age legal defense.
You Were Falsely Accused
Just like other sex crimes in California, false accusations are typical in statutory rape crimes. A person might accuse you falsely out of jealousy, anger, or revenge. At times, if a minor's parent is unhappy with the person their child is dating, they may accuse the person of statutory rape. If the police arrest you for statutory rape, you should remain silent if you did not commit the offense. Do not try to talk your way out of the crime or explain to the police. Everything you say could and will be used against you in a court of law. You should remain silent until your criminal defense attorney arrives. An attorney will conduct a thorough investigation and do everything possible to prove your innocence.
Consent is Not a Defense in Statutory Rape Cases
For most sex crimes in California, you can fight the charges by stating that the victim consented to your actions. For instance, in a rape case under PC 261, you can fight rape charges by saying that the victim consented to the sexual intercourse. Statutory rape is a crime involving minors, and as long as the minor is below 18 years, it doesn't matter whether the minor consented or not. According to the law, people below 18 years are legally deemed unable to give consent.
Therefore, even if the minor was willing to have sex or even initiated the sex, this will not serve as a defense to the charges. The state believes that minors are too young to understand the consequences of their actions.
When the Victim Files a Civil Lawsuit
If the victim feels that they have suffered damages due to the defendant's actions, the victim may file a civil sexual assault lawsuit. It's not a requirement for the defendant to have been convicted in a criminal trial for the victim to file a lawsuit against them. The preponderance of the evidence is the burden of proof in a civil lawsuit. If most jurors, usually nine out of 12 jurors, believe that the defendant did something wrong, they may order the defendant to pay damages. The jurors may order the defendant to pay damages even if the defendant was found innocent or not guilty in the criminal jury trial. The defendant might have to pay the damages even if the victim did not file criminal charges against the defendant.
The damages that the perpetrator of the crime may have to pay include both compensatory and non-compensatory damages, including but not limited to:
- Medical bills
- Lost wages
- Psychological counseling
- Pain and suffering
- Lost earning capacity
Statutory Rape Charge and SB145
SB 145 mainly applies to other sex offenses like sodomy, penetration by a foreign object, and oral copulation of a child. According to this bill, a judge has the discretion to decide whether a defendant convicted of the outlined offenses should register as a sex offender. As long as the defendant is not more than ten years older than the child and the child is not less than 14 years, they do not have to register as a sex offender. However, it is essential to note that this bill does not apply to SB145 because it doesn't require perpetrators of statutory rape to register as sex offenders.
Related Offenses
Certain offenses are related to statutory rape because they are frequently charged alongside the crime. Some of the related crimes have common elements with statutory rape. The related crimes include:
Lewd Acts on a Minor
The California PC 288(a) outlines the crime of lewd acts with a minor. This crime occurs when an adult engages in a sexual act with a child below 14 years. For the prosecutor to charge you under PC 288(a), he or she must prove that you willfully or intentionally touched a child's body through clothing or on the bare skin or that you made the child touch you or another person. The prosecutor should also prove that you did this to gratify or satisfy your sexual desire. The child must have been below 14 years at the time you committed the crime.
According to California PC 288, you can face lewd acts charges even if:
- You did not touch the child on a sexual organ
- You touched the minor over his or her clothes and not on the bare skin
- The child is the one that touched after you urged him or her to touch you
The prosecutor doesn't have to prove that actual arousal occurred. The prosecutor will only need to show that you had the intent to arouse yourself, the child, or another person. Your intent or your motive is what makes the touch a crime.
The penalties for the crime of lewd acts with a minor will vary depending on several factors:
- The child's age
- Whether the defendant accomplished the lewd act by force, coercion, violence, or threats
- Whether there was a pattern or a repetition of the lewd acts
- The age of the victim and the defendant
Unlike a statutory rape conviction, a conviction under PC 288 requires the defendant to register as a sex offender. Currently, the crime of lewd acts with a minor requires registration as a sex offender for life. The additional consequences for the crime of lewd acts with a minor include:
- Loss of your professional license
- Immigration consequences
- Loss of a right to own a firearm
Rape
The California PC 261 outlines the crime of rape. You commit this offense if you have sexual intercourse with another person without their permission, usually through force, threats, and fraud. Therefore, unlike in the crime of statutory rape, where consent doesn't matter, the question of whether the alleged victim consented is relevant in rape cases. Rape is an automatic felony punishable by imprisonment in state prison. The prosecutor must prove the following elements to accuse you of rape:
- You engaged in sexual intercourse with another person
- You and the victim were not married at the time you committed the crime
- The victim did not agree or consent to your actions
- You accomplished the act through coercion, violence, force, retribution, fraud, or fear of bodily injury
According to California law, certain people are incapable of consenting to sexual intercourse. These people include:
- A person who is too drunk or intoxicated
- A person suffering from a mental illness or disorder
- An unconscious person
The typical consequences for the crime include imprisonment in a California State Prison for up to 8 years. You may also be subject to felony probation, also known as formal probation. If the alleged victim suffers significant bodily injury, you may be subject to an additional five years in state prison. The imprisonment period will increase if the victim is a minor below 18 years. If the victim is below 18 years, you will serve 11 years in prison. If the victim is below 14 years, you will do 13 years in prison.
With the help of your attorney, you can fight rape charges by pointing out that:
- Your actions did not arise to sexual intercourse
- You were falsely accused
- You reasonably believed that the victim had consented to your actions
Rape is a serious crime, and you will need an experienced attorney to prove your innocence.
Find a Criminal Defense Attorney Near Me
If you are currently facing statutory rape charges in Santa Ana, CA, you should contact an experienced criminal defense attorney to help you fight the charges. An attorney will investigate your case, gather the necessary evidence, and help you create a convincing defense. For reliable criminal defense services, contact Darwish Law. Call us at 714-887-4810 and speak to one of our experienced attorneys.