In California, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 18), even if the sex is consensual. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in California and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s sexual battery, assault, and child enticement and abuse laws.
Statutory rape is prosecuted under California’s rape and sexual assault laws. Penalties depend on the ages of the defendant and victim, as described below.
Getting Legal Guidance
The information in this article provides an overview of the law relating to statutory rape. If you are trying to determine the legality of any kind of conduct, make sure to consult an experienced criminal defense attorney. The law is complex and changes regularly.
Unlawful sexual intercourse with a minor involves sexual intercourse or penetration (however slight) between a minor who is 17 or younger and a defendant of any age. (Cal. Penal Code § 261.5 (2018).)
Unlawful oral copulation includes oral sex between a minor who is 17 or younger and a defendant of any age. (Cal. Penal Code § 288a (2018).)
Sexual penetration includes sexual intercourse or penetration (however slight) between a minor who is under 14 and a defendant who is at least ten years older than the minor. (Cal. Penal Code § 289 (2018).)
Lewd and lascivious acts upon a child involve sexual contact between a minor who is 13 or younger and a defendant of any age. This offense also includes contact between a minor who is 14 or 15 and a defendant who is at least ten years older than the minor. (Cal. Penal Code § 288 (2018).)
Depending on the ages of the parties, and other factors, statutory rape crimes can be tried as misdemeanors or felonies in California. Typically, the charges and potential punishments get more serious the younger the victim.
For misdemeanors, punishment can include probation, a fine of as much as $1,000, up to 364 days in jail, or some combination of these penalties.
A felony conviction will incur at least 16 months (and up to eight years) in prison and can also result in probation, up to $10,000 in fines, or both.
Convicted offenders can also be ordered to undergo chemical castration. This order is discretionary when the defendant has a single conviction (the court can impose it, but can also decide not to), but it is mandatory when the defendant has two or more convictions.
(Cal. Penal Code §§ 261.5, 288, 288a, 289, 672, and 645 (2018).)
State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including certain instances of statutory rape) must register as sex offenders.
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.” One or more of the following defenses may also apply.
California has a marital exemption for statutory rape that allows married people to have consensual sex even if their ages would prohibit it if they were not married. The marital defense is a remnant of the marital rape exemption.
Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 16 year old willingly has sex with Tony, her 23 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
But if Jen and Tony are married and living in California, Tony need not fear criminal charges for having consensual sex with Jen. This is because California has a marital exemption to the California statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In California, there is a Romeo and Juliet exemption for consensual sex between a minor and a person who is three or fewer years older or younger. However, this is a limited exception because it serves to reduce the conduct from a felony to a misdemeanor offense. The conduct is still illegal, but someone protected by this exception will face the possibility of smaller fines and reduced jail time.
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the child said that he or she was of age, and that a reasonable person would have believed it. Unlike in most states, in California mistake of age is sometimes a defense.
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Laws can change at any time, and numerous defenses may apply to statutory rape charges. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time) and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated July 27, 2018