Statutory Rape | Penal Code 261.5 PC

November 5, 2016

In California, statutory rape is codified under Penal Code 261.5 making it unlawful to have sexual intercourse with a person who is not the spouse of the perpetrator and is under the age of eighteen (18).[1]  The charge is categorized as “rape” because the law does not recognize a minor to have the capacity to “consent” to any sexual act even if there was no force or fear involved.

If the age difference between the purported victim and defendant does not exceed three (3) years, then the government can only file misdemeanor charges.[2]  However, if there is more than a three-year age difference, the charge becomes a wobbler, allowing the prosecutor to charge someone with either a felony or misdemeanor.[3]

For example, a man 19 years old who has intercourse with a 17-year-old girl would be charged with a misdemeanor violation of statutory rape.  However, a man 21 years old who has intercourse with a 16-year-old girl could be charged with either a felony or a misdemeanor.

It’s not uncommon to be charged with other charges including assault, battery, sexual battery, or lewd acts with a minor. Additionally, a common misconception is that the purported victim must be desirous of prosecution in order for someone to be charged with statutory rape.  Instead, the prosecuting agency holds complete power regardless of the purported victim’s desire.

Elements of Statutory Rape

In order for someone to be found guilty of statutory rape under PC 261.5, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. You participated in an act of sexual intercourse with another;
  1. You were not married to the other person at the time of intercourse;
  1. The other person was under the age of 18 years.

Defending PC 261.5 Charges

Good-faith Belief

If someone reasonably and actually believed that the other person was age 18 or older, then they are not guilty of this crime. Perhaps the purported victim lied about her age, or you met her in a common adult establishment, or she appeared to be much older than her actual age, these are all factors to argue with respect to this defense.

Sexual Penetration

There must be some form of intercourse to withstand this charge.  In other words, statutory rape requires penetration. Therefore, if you did not engage in any act of intercourse, then you are not guilty of this crime. However, the prosecutor may elect to charge you with other forms of non-intercourse charges. 

False Accusations

It is not uncommon for someone can be falsely accused of committing a sex crime against the purported victim. Discovering the purported accuser’s motive is generally a key element for this offense. In addition, prior acts or false allegations, psychiatric records, or history of substance abuse are necessary to review during the investigative stages of the case.

Punishment & Sentencing

PC 261.5 is punishable by up to one (1) year in the county jail if the age difference between the defendant and purported victim is within three (3) years of age.  A felony conviction carries a sentencing punishment of 16 months, 2, or 3 years in county jail.  Additionally, depending on the age difference, the prosecutor may seek civil penalties ranging from $2,000 up to $25,000.  Furthermore, registering as a sex offender is not mandated under this statute.

Call Us to Schedule a Free Consultation

If you’ve been arrested or are under investigation for statutory rape under PC 261.5, then do not communicate with law enforcement and contact a Newport Beach Criminal Defense Attorney at the Law Office of John D. Rogers to schedule a free consultation. Our office handles sex crime allegations all throughout southern California including Orange County, Los Angeles, Ventura, San Bernardino, and Riverside counties.


[1] California Penal Code 261.5(a) – defined. (“(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.”)

[2] See Penal Code 261.5(b) – (“(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.”)

[3] See Penal Code 261.5(c) and (d).

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