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Reasonable Mistake of Age Defense in Statutory Rape Cases (PC 261.5) Unlawful Sexual Intercourse

Information on the California crime of statutory rape, also called unlawful sexual intercourse, is found at California penal code section 261.5. Information on the penalties and defenses to PC 261.5 charges may be found at unlawful sexual intercourse.


This article primarily deals with the defense of reasonable mistake of age (of the minor) in CA statutory rape cases. For further information, contact our sex crimes criminal defense attorneys today for a free consultation.


In short, statutory rape is defined as sexual intercourse with a person under the age of eighteen (18) years of age (i.e., a "minor"). It does not matter if the minor was willing to engage in sexual intercourse. This is because a minor cannot legally consent to sexual intercourse in California.


Note: When the age difference between the minor and the defendant is less than three years, the statutory rape is usually charged as a misdemeanor under PC 261.5(c). When there is more than three years difference in age between the defendant and the minor, the defendant is usually charged with felony statutory rape charged under PC 261.5(d).


Age of Consent: The age of consent, or the age at which a person may legally engage in sexual conduct with another person, is different from state to state. However, in California, the age of consent is eighteen (18).


Reasonable Mistake of Age


Per Calcrim 1071, if ‘the defendant reasonably and truly believed that the minor was at least eighteen (18) years of age, then the defendant is not guilty of unlawful sexual intercourse (Calcrim Abbrev.).


Objective Standard: The defendant must have reasonable belief that the minor was of the age of consent (18) at the time of sexual intercourse. This means that the average person would also have believed that the minor was of the age of consent if he or she was in the same situation as the defendant at the time of sexual intercourse.


Example: If the minor appeared very young and acted very immature at the time of sexual intercourse, then the average person might not believe that the minor was of the age of consent (18) at the time of sexual intercourse. On the other hand, if the minor had a job, drove a car, and was attending college, then the average person could easily believe the minor was of the age of consent (18).


Subjective Standard: In addition to the reasonable (objective) standard, the defendant must have truly believed that the minor was of the age of consent (subjective standard).


Example: If defendant actually knew the minor was only seventeen (17) years old at the time he or she engaged in sexual intercourse with the minor, then a reasonable mistake of age defense will not apply to the defendant. On the other hand, if the defendant truly did not know the age of the minor, and the defendant truly believed that the minor was of the age of consent (18), then the mistake of age defense may apply to defendant.


Both the objective (reasonable) and subjective standards are used in evaluating whether the defendant is entitled to use the reasonable mistake of age defense in a statutory rape case filed as either PC 261.5(c) or PC 261.5(d).


Willful Ignorance Not a Defense: If the defendant believed the minor was likely under the age of consent (18), but he or she willfully remained ignorant of that information when he engaged in sexual intercourse with the minor, then the defense of reasonable mistake as to the age of the minor may not be used in a PC 261.5 case.


Example: Sarah, a seventeen (17) year old, posts social media texts that indicate she is eighteen (18) years old. John meets Sarah through social media, but when John meets Sarah in person, he doubts that Sarah is actually eighteen (18). Nevertheless, John does not inquire as to Sarah’s age because he does not want to hear that Sarah is underage (under 18).


Result: If John engages in sexual intercourse with Sarah, he may be charged with PC 261.5 and the reasonable mistake of age defense will not apply to his case.


Prosecutors’ Burde to Prove: The district attorney must prove, beyond a reasonable doubt, that the defendant did not reasonably and actually believe that the minor was at least eighteen (18) years old. If the district attorney cannot prove this fact beyond a reasonable doubt, then the defendant is entitled to an acquittal of the PC 261.5 charges (Calcrim 1071 Abbrev.).


Mistake of Fact Non-Exclusive: The defendant is entitled to use the reasonable mistake of age defense (mistake of fact defense) in conjunction with other defenses.


Example: John is charged with misdemeanor unlawful sexual intercourse (PC 261.5). John may defend with reasonable mistake of age of the minor (mistake of fact), and any other applicable defense that applies to the same criminal charges, such as statute of limitations (Three years statute of limitations in statutory rape cases in California), illegal search and seizure, coerced confession, lack of Miranda warnings, legal marriage between the minor and the defendant, insufficient evidence to prove intercourse occurred, and more.


Note: Attempted statutory rape is not a lesser included offense to statutory rape (PC 664-261.5).


Evidence in PC 261.5 Cases


As stated, the district attorney must prove, beyond a reasonable doubt, that every element of the criminal charge of statutory rape is true. This means that the district attorney must prove:


1) the minor was under the age of eighteen (18),


2) at the time of sexual intercourse with a person aged eighteen (18) or older,


3) some level of penetration of the defendant’s penis entered the minor’s vagina, no matter how slight, and


4) the defendant knew, or reasonably should have known, that the minor was under the age of eighteen (18).


To prove the defendant knew the minor was under the age of eighteen (18) in a statutory rape case, the district attorney may use any relevant evidence, including written conversations between the minor and the defendant, live testimony of persons who are award that defendant knew the minor was underage, and other circumstantial evidence (i.e., minor was in high school, minor did not drive, minor did not work, minor looked very young, etc.).


Defense Applies to Other Sex Crimes: The reasonable mistake of age defense might also apply to other sex crimes related to minors where the defendant reasonably and actually believed the minor was of the age of consent, including statutory sodomy (PC 286(b)(1)), statutory oral copulation (PC 287(b)), statutory sexual penetration (PC 289), and more.


Limitations of Defense: Reasonable mistake of age defense (mistake of fact) does not apply if the minor is not otherwise willing to engage in sexual conduct with the minor.


Example: David performs oral sex on Jane while Jane was extremely drunk. David reasonably and truly believed that Jane was nineteen (19) years old when he performed oral sex on Jane, but Jane was only seventeen (17) years old when David performed oral sex on Jane.


Result: David may be charged with, and found guilty of, oral copulation upon minor (PC 287). This is because Jane did not voluntarily engage in oral sex at the time of David’s crime.


For more information on the defense of reasonable mistake of age of the minor in a statutory rape case (unlawful sexual intercourse), or CA PC 261.5(c) or PC 261.5(d), contact our sex crimes criminal defense attorneys today for a free consultation.


Our award-winning sex crimes criminal defense attorneys have successfully helped thousands of defendants charged with all misdemeanor and felony sex crimes, including (PC 288(a)) lewd or lascivious act upon a child under 14, (PC 243.4) sexual battery, (PC 647(b)(3)) soliciting a minor for prostitution, (PC 311.11) possession of child pornography, (PC 647(a)) engage in public lewd act, (PC 286) unlawful sodomy, and more. Call today!


909-913-3138


Further Reading


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Reasonable Mistake of Age Defense in Statutory Rape Cases (PC 261.5) Unlawful Sexual Intercourse

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