The law on the crime of statutory rape, also known as unlawful sexual intercourse, is found at California Penal Code Sections 261.5(b), 261.5(c) and 261.5(d).

 

This brief article covers the law, penalty, and common defenses that are related to statutory rape crimes charged under PC 261.5. For further information, contact our sex crimes criminal defense lawyers today for a free consultation.

​

Note: The term statutory rape is an older term that is no longer used in criminal court. The modern term for statutory rape is unlawful sexual intercourse with a minor. The change in terminology reflects a difference between the crimes of non-consensual forcible rape of a minor, which is a very serious and violent crime, and consensual sexual intercourse with a minor that is unlawful only because of the minor's inability to lawfully consent to sexual intercourse.

​

Statutory Rape (PC 261.5) Law

​

In short, it is a crime in California for a person who is eighteen (18) years or older, to engage in sexual intercourse with a minor. In California, a minor is a person under the age of eighteen (18) (PC 261.5 Abbrev.).

 

The word statutory in the term statutory rape means that California laws (the statute) invalidate, or voids, a minor's consent to engage in sexual intercourse. In other words, a minor cannot legally consent to sexual intercourse until the minor reaches the age of eighteen (18) [California's age of consent is 18]]. Sexual intercourse means actual penetration of the vagina with a penis.

​

For example, David and Janet are in a dating relationship. David is 18 years old, and Janet is 16 years old. David and Janet engage in consensual intercourse. By law (statutory), California voids Janet's consent to sexual intercourse, which means that Janet has not legally consented to sexual intercourse, and therefore, David may be charged with statutory rape.

​

Note: By definition, statutory rape cannot be committed against a male, and statutory rape is not committed unless the male's penis penetrates the female's vagina, even if the penetration of the female's vagina is minimal or slight. However, other sex crimes exist for situations where an adult engages in sexual activity with a minor, but there is no sexual intercourse. These crimes include oral copulation on a minor, lewd act on a minor, sexual penetration by object on a minor, sodomy on a minor, and more.  

​

PC 261.5 crimes include:

​

• PC 261.5(b) Charged when any person engages in an act of unlawful sexual intercourse with a minor who is not more than three years younger than the defendant.

​

• PC 261.5(c): Charged when any person who engages in an act of unlawful sexual intercourse with a minor is more than three years older than the minor.

​

• PC 261.5(d): Charged when any person 21 years of age or older engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age.

​

Note: CA law specifically excludes minors from criminal liability for their participation in unlawful sexual intercourse.

 

Punishments & Sentence

​

PC 261.5(b): Statutory rape charged as PC 261.5(b) is considered a misdemeanor. If the defendant is convicted of PC 261.5(b), he or she may be sentenced up to 180 days in the county jail. A probation sentence may be available in some PC 261.5(b) cases (See below).

​

PC 261.5(c): Statutory rape charged as PC 261.5(c) is classified either as a misdemeanor or as a felony. If the defendant is convicted of PC 261.5(c) as a misdemeanor, he or she may be sentenced up to one year in the county jail. If the defendant is convicted of PC 261.5(c) as a felony, he or she may be sentenced up to three years in the county jail. A probation sentence may be available in some PC 261.5(c) cases (See below).

​

PC 261.5(d): Statutory rape charged as PC 261.5(d) is classified either as a misdemeanor or as a felony. If the defendant is convicted of PC 261.5(d) as a misdemeanor, he or she may be sentenced up to one year in the county jail. If the defendant is convicted of PC 261.5(d) as a felony, he or she may be sentenced up to four years in the county jail. A probation sentence may be available in some PC 261.5(d) cases (See below).

 

Probation Sentence: A probation sentence is a period of supervision as opposed to a jail sentence. A probation sentence is allowed in unlawful sexual intercourse cases (statutory rape); however, a probation sentence is not guaranteed after a conviction for penal code 261.5.

 

Whether a defendant receives a probation sentence in any statutory rape case depends largely on the facts of the case, the defendant’s criminal history, and the terms of any negotiated plea bargain between the defendant and the district attorney.

 

Note: A probation sentence for PC 261.5 crimes, when available, is condition upon the defendant fulfilling probation terms, such as abide by a criminal protective order in favor of the minor, pay fines, commit no misdemeanor or felony crime, pay restitution to the minor, and more. For more information, see Probation & Parole in CA Sex Crimes.

 

Suspended & Split Sentences: A suspended jail sentence is a predetermined jail sentence that is not served unless the defendant violates a condition of his or her out-of-custody sentence. Suspended sentences are available in some PC 261.5(c) and 261.5(d) statutory rape cases. A split jail sentence is a sentence that is served partially in jail and partially out of jail on work release or house arrest. Split sentences are available in some PC 261.5(c) and PC 261.5(d) cases.

 

Note: Incarceration related to unlawful sexual intercourse crimes is served in a local county jail as opposed to a state prison. this applies to both felony and misdemeanor convictions, even if the sentence is long than a year (PC 1170(h)).

 

Wobbler Crimes: PC 26.5(c) and 261.5(d) are considered wobbler crimes, which means the district attorney may choose to charge the offense as either a felony or a misdemeanor. Whether or not a prosecutor charges misdemeanor or felony statutory rape charges depends largely on the facts of the case and the defendant's criminal history.

 

Also, sometimes the district attorney will charge a felony offense and the case is reclassified upon request from the defendant's criminal defense attorney for various reason (even over the objection of the prosecutor)

 

Sex Offender Registration: If the defendant is convicted of statutory rape, either as a misdemeanor, or as a felony, the defendant is not ordinarily required to register as a sex offender. However, in very unusual cases, where the court finds that the unlawful sexual intercourse was the result of the defendant’s uncontrolled sexual compulsion, or where the defendant has multiple convictions of statutory rape, the court is authorized to require the defendant to register as a sex offender (PC 290.006).

​

CIMT & 3 Strikes Law: Statutory rape crimes are not considered crimes involving moral turpitude (CIMT). Also, Neither PC 261.5(c), nor 261.5(d) is considered a strike offense per California's Three Strikes Sentencing Law. Nevertheless, any conviction for a misdemeanor or felony crime, including any statutory rape crime, may be used against the defendant in adverse immigration proceedings, adverse military service proceedings, and adverse professional licensing proceedings.

​

Fines: Per PC 261.5(e)(1): Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:

​

•  (A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).  

​

• (B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).

​

• (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).

​

• (D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).   

​

In addition to any jail sentence, if convicted of statutory rape under PC 261.5(b), 261.5(c), or 261.5(d), the defendant could face any or all of the following additional punishments: restitution (if the minor incurred any out-of-pocket costs as a result of the defendant's conduct, such as cost of therapy or medical treatment), court security fees, mandatory HIV testing, civil lawsuits, probation or parole terms that may include further restrictions on liberty (including the loss of gun rights for felony convictions, mandatory polygraphs exams, etc.), and more.

​

Defenses to PC 261.5

​

Every unlawful sexual intercourse case is different; therefore, every defense to a PC 261.5 allegation is uniquely crafted to defend against the alleged facts. In any event, the most common defense incorporated by criminal defense attorney in statutory rape cases include:

​

Mistake of Fact: Reasonable mistake by the defendant as to the age of the minor could be a defense. this defense applies If the defendant held a true and reasonable belief that the minor was at least eighteen years old at the time of the otherwise unlawful sexual intercourse. For more information, see Reasonable Mistake of Age in PC 261.5 Cases.

​

Time barred Prosecution: Statute of limitations, or a legal time limit in which the district attorney may file a criminal complaint against the defendant in a PC 261.5 case. The statute of limitations is usually three years from the date of the alleged offense for both misdemeanor and felonies in statutory rape cases.

​

No Sexual Penetration: It is a defense to unlawful sexual intercourse that the defendant did not penetrate the victim's vagina with his penis. However, penetration does not have to be more than slight, and neither ejaculation, nor scientific evidence, is required to prove penetration.

​

Other common defenses to PC 261.5 crimes include: coerced confessions, illegal search and seizure, jury nullification, marriage to the minor at the time of the alleged offense, insufficient evidence, impeachment of testimony or statements reported by alleged victim, and more.

​

To learn more about the crime of statutory rape (unlawful sexual intercourse), and PC 261.5, contact our experienced sex crimes criminal defense attorneys today for a free and discreet consultation. Our award-winning criminal defense lawyers will patiently review your rights and defense option. Our dedicated team has successfully handled hundreds of sex crimes in the Inland Empire and our pursuit of your freedoms is second to none.

​

909-913-3138

​