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Statutory Rape

Having sex with someone under the age of consent is considered statutory rape. Even if the underage individual wanted to have sex, it can still be unlawful if the other person is over a certain age. Statutory rape is a serious offense in California, leading to prison time and fines. If you have been accused of statutory rape, talk to your experienced East Bay criminal defense attorney to understand your rights.

Statutory Rape in California

Under California Penal Code §261.5, it is considered unlawful sexual intercourse for an adult to have sex with a minor (other than a spouse), under the age of 18. This is considered “statutory rape,” because anyone under the age of 18 is not legally able to consent to sex. Rape is traditionally thought of as sex through force or rendering the other person unable to consent. Statutory rape means the minor is not legally able to give consent.

Statutory Rape Penalties

The penalties for statutory rape depend on the ages involved and the age difference between the perpetrator and the minor.

Less than 3 years difference:

Any person who has unlawful sexual intercourse with a minor who is not more than three (3) years older or three (3) years younger than the perpetrator is guilty of a misdemeanor. The penalties for a misdemeanor conviction for statutory rape may include up to $1,000 in fines and jail for up to 1 year.

More than 3 years difference:

Any person who engages in unlawful sexual intercourse with a minor who is more than three (3) years younger may be charged with a misdemeanor or a felony.

The penalties for a misdemeanor conviction for statutory rape may include up to $1,000 in fines and jail for up to 1 year. However, the penalties for a felony conviction for statutory rape may include up to 3 years in jail and fines of up to $10,000.

Over 21 and under 16:

Any person 21 years or older who engages in an act of unlawful sexual intercourse with a minor who is under the age of 16 can be charged with a misdemeanor or a felony. The penalties for a felony conviction for statutory rape where the defendant is over 21 and the victim is under 16 may include up to 4 years in jail and fines of up to $10,000.

Civil Penalties

In addition to any criminal penalties, a defendant may be subject to civil fines. Like the criminal penalties, the civil penalties depend on the age difference between the two individuals.

Age Difference

Age of the “Victim”

Maximum Fine

Less than 2 years

Under 18 years old

$2,000

2 years or more

Under 18 years old

$5,000

3 years or more

Under 18 years old

$10,000

5 years or more

Under 16 years old

$25,000

Under the age of 14:

Sexual intercourse involving an adult with anyone under the age of 14 is child molestation. Any act of “lewd or lascivious” conduct with a minor under the age of 14 is a felony offense, even if sex is not involved. Lewd acts with someone under the age of 14 can result in jail time of up to 8 years, or more, depending on the ages involved, criminal history, and whether force was involved. Lewd acts with a child also require the defendant to register as a sex offender.

Sex Offender Registration

Statutory rape generally does not require the defendant to register as a sex offender. However, if the offense involved a victim under the age of 14, the defendant will be deemed a sex offender.

Sex offender registration for lewd acts with a child in California depends on the specific offense and could range from at least 20 years to a lifetime requirement. Sex offenders are required to register with local law enforcement and re-register annually within 5 days of their birthday.

Sex offenders are also restricted in where they can live, what jobs they can get, and must report any time they move addresses. Even moving outside of California may require continued registration as a sex offender in the new state.

Defenses to Statutory Rape Charges

There are a number of possible legal defenses available to someone charged with statutory rape. This may include never having sexual intercourse with the underage individual, or having an honest and reasonable belief that the other person was actually over the age of 18.

It is important to remember that consent is NOT a defense to statutory rape. Many people who are charged with statutory rape feel like the term “statutory rape” implies force or that the defendant is a sexual predator.

In many cases, individuals charged with statutory rape may include a dating couple where the younger person is still in high school and the older person recently turned 18. Their age difference may only be a couple of years. However, because the younger person is technically a minor, sex between the two is against the law.

The “victim” may not even be the person who reported having sex with an older partner. Statutory rape is often reported to police by parents or teachers. Even a jealous ex may report the underage sex to get the older person in trouble.

If you are facing criminal charges for statutory rape in California, talk to your experienced East Bay criminal defense attorney about the best defenses available to fight back in your case.

East Bay Criminal Defense Attorney

Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing statutory rape charges. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and keeping a clean record. Whether you are arrested in Fremont, Richmond or anywhere else in Contra Costa County or Alameda County, contact Lynn Gorelick.

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