city in the night

Former Prosecutor


get started now

Statutory Rape

Facing charges for sex offenses can be a critical situation that could significantly impact your life. When presented with such charges, you can increase your chances of gaining the best possible outcome by finding the right criminal defense attorney. If you are facing charges of California Penal Code 261.5, statutory rape, the following information could shed some light on the situation. 

What is Statutory Rape, Penal Code (PC) 261.5?

Continue reading below...

Under California PC 261.5, “statutory rape” is when a person engages in sexual intercourse with another person, a minor, who is under 18 years of age. It is important to note that statutory rape is a crime, even if it was consensual. This is because the laws presume that a minor does not have the full capacity to give informed consent to have sex. However, the age of consent actually differs from state to state. Even if it was consensual for both parties, if they are under the age of 18, they do not have the legal capacity to make an informed consensual decision about sexual intercourse. According to California law, the minor’s consent is actually considered legally invalid. 

Some situations that could possibly lead to charges of statutory rape, PC 261.5 are as follows: 

  • A college professor who is 40-years-old begins a sexual relationship with a 17-year-old undergraduate student that he teaches in one of his classes; 
  • A 19-year-old senior girl in high school begins a sexual relationship with a 16-year-old junior boy that she has in several of her classes;
  • A 24-year-old substitute teacher who is substituting in a high school begins a sexual relationship with a 16-year-old student. 

The first example and the last example could be considered more serious than the high school couple situation.  This is because a 40-year-old professor and a 24-year-old substitute teacher are in authoritative positions.  The minor’s capacity to make an informed consensual decision about sexual intercourse is not only legally invalid, but the age gap and positions of power the professor/teacher hold could have more of an effect on the penalty and outcome of each case. 

Related Offenses:

Other areas that statutory rape, PC 261.5 is similar too, but carry different consequences and definitions for are:

  • Lewd or Lascivious Acts with a Minor (i.e. Child molestation), PC 288
    • Under PC 288, the crime of lewd or lascivious acts with a child under the age of 14 (sometimes 15) years of age is also known as child molestation. 
    • The big difference between PC 261.5 and PC 288 aside from age, is that sexual intercourse does not have to take place.
    • Instead, if a sexual act was committed upon a child, with the intent of arousal, appeal, lust, or sexual desire/gratification, it is a crime.
    • Even if both parties were fully clothed, PC 288 can still be charged if the defendant had the specific “intent of arousal, lust, passion, or sexual gratification.”   
  • Rape, PC 261 
    • Under PC 261, rape, the question of consent does not apply because California’s rape law is when a person has sexual intercourse with someone without their consent. 
    • This means the rape was committed using force, threats, or some form of fraudulent behavior without consent from the alleged victim. 

What the Prosecutor Does:

For the prosecution to prove that the crime of statutory rape, PC 261.5 was committed, here are the 3 elements of the crime: 

  • that the defendant actually did have sexual intercourse with the alleged victim; and
  • that the persons that were involved in the act were not married; and
  • the alleged victim was in fact under 18 years of age at the time of said offense. 

Also, the prosecution does not have to prove that force was used or that consent was given. The law in cases of statutory rape has more to do with the age of the parties involved and the age difference the defendant and alleged victim have. This is very important when it comes to sentencing. The prosecutor, in fact, has to prove the age of both the defendant and alleged victim at the time the sexual intercourse took place. 

This is why finding the right criminal defense lawyer is so important when facing charges of statutory rape, especially because some cases of statutory rape can be filed, even when couples are very much in love and had been in a relationship prior to the charges. Examples of such cases are as follows: 

  • A 17-year-old boy genius graduates from high school early and begins his first year in college. He befriends and begins dating a 21-year-old woman, a fellow student, who is also in her first year of college. As the romantic relationship blossoms, they begin to have sex. 
    • When the boy’s parents find out about the relationship and how old she is, they contact the local police department. The 21-year-old classmate could very well be charged with statutory rape. 
  • A 14-year-old girl begins dating a 16-year-old boy and they both attend the same high school. As their relationship develops, 2 years pass before they begin having intercourse. 
    • A teacher at the high school catches them being intimate in an empty classroom and turns them into the new school Principal. He does not have prior knowledge that the couple were high school sweethearts and still are. So, the new principal involves the police. The 18-year-old boy may be charged with statutory rape even though the sex was consensual and they are in a long relationship. 

Legal Defenses:

Some of the common legal defenses surround 3 basic questions:

  • Was the alleged victim under the age of 18 years old and did the defendant know this prior to sexual intercourse?
  • Could this be a false accusation? 
  • Were there any police missteps? 

As aforementioned, regardless of consent, statutory rape charges can be filed based solely off of the age of the alleged victim and the defendant. 

Some examples of what a skilled legal defense can present are as follows: 

  • You sincerely believed the alleged victim was 18 years old or older based off of this situation: 
    • A 22-year-old man meets a young woman at a bar that required ID to prove that you are 21-years-old or older. They buy drinks for one another, which also requires presenting ID. They hang out all night and eventually go to his place and have sex. 
    • The young woman gets in trouble for staying out all night and tells her parents. It comes out that she was using a fake ID to get into the bar and she was only 17-years-old.
    • The 22-year-old young man, however, reasonably and honestly believed that she was 21-years-old. Thus, he should not be held liable for the crime of statutory rape since there was reasonable evidence that the minor misrepresented herself as an adult when she entered the bar and drank alcohol, both of which required you to present proof of ID. 

Possible Penalties:

The penalties for statutory rape, PC 261.5 are:

  • Misdemeanor statutory rape is when the age gap is only 3 years and is punishable by-
    • probation, 
    • up to 1 year in county jail,
    • a maximum fine of $1,000
  • Felony statutory rape is punishable by:
    • probation,
    • up to 1 year in county jail, or
    • 16 months, 2 or 3 years in prison.
  • If felony charges are filed for statutory rape because the defendant was 21 years old or older and the victim was 16 years old or younger the punishments are: 
    • imprisonment for 2, 3, or 4 years in prison, and
    • fines up to $10,000

Related Penalties for PC 288, child molestation and PC 261, rape

Both PC 288, child molestation and PC 261, rape are considered felonies and penalties which include up to 8 years in a California state prison and registering as a sex offender. Under California PC 290, registering as a sex offender is required if one is convicted of child molestation and/or rape. Failing to register as a sex offender is also considered a felony and it carries separate consequences. It is also important to note that if you are required to register as a sex offender, it will stay on your record for the rest of their life. 

Charges like statutory rape, PC 261.5 and the related charges of rape, PC 261 and child molestation, PC 288 are very serious and life altering situations. Do not face such charges alone, if you are located in the greater San Diego, Orange County, or Los Angeles area, contact the Law Offices of Anna R. Yum.  Attorney Yum is a former sex crimes prosecutor with extensive and highly valued experience in both sexual assault and child abuse cases.

If you have any questions and need advice or counseling, simply contact the criminal defense attorneys at the Law Offices of Anna R. Yum by calling 619-233-4433 or by clicking here

When your future and freedom are on the line…

Choosing the right attorney makes all the difference.

If you need legal assistance or just have a question―call my office today. The call is completely FREE and so is the case consultation.

When you come in for your no-obligation FREE consultation, I will personally sit down with you so that we can discuss your case and how I can help you.

Free Consultation

(619) 233-4433