Orange County Statutory Rape Lawyer

Under California law, Penal Code Section 261.5 statutory rape, you may not have sexual intercourse with a person under the age of 18 who is not your spouse. If you do, you have committed the crime of statutory rape, also known as unlawful sex with a minor. Note that PC 261.5 makes no exception for 

• Sex that was consensual

• Sex that was initiated by the minor

At The Law Offices of Bryan R. Kazarian in Orange County, California, we often answer questions from clients who have been arrested or are being investigated for statutory rape. Common questions include:

• Does it matter that both parties were very close in age, perhaps less than a year apart?
• Is it still statutory rape if the defendant was also under 18 at the time?
• What if both parties were in a committed long-term relationship?

Although it may seem these questions might have some effect on whether the crime of statutory rape was committed, they do not. According to PC 261.5, none of them will matter. 

You may have heard about safe harbor provisions, often called “Romeo and Juliet” laws. Such provisions state that two people who have a committed relationship before one party turns 18 and are close in age can lawfully engage in sexual activity. Several states have enacted such provisions. However, California has no safe harbor provision.   

You may have other questions about California PC 261.5 statutory rape. We at The Law Offices of Bryan R. Kazarian in Orange County urge you to schedule a consultation to discuss your questions and the facts of your case. 

Penal Code 261.5 statutory rape provides a clear, specific definition:  

Unlawful sexual intercourse is an act of sexual intercourse with a minor who is not the spouse of the perpetrator. A minor is someone under the age of 18 years.

To convict you of PC 261.5 statutory rape, the prosecution will have to prove beyond a reasonable doubt what are often called the elements of the crime:

• That you had sexual intercourse with the victim;
• That you and the victim were not married at that time of intercourse; and
• At the time of intercourse, the victim was less than 18 years old;

The prosecution will not have to prove that you used any force to engage in sexual intercourse. Also note that any penetration whatsoever is considered sexual intercourse and that the prosecution will not have to prove that ejaculation occurred. Remember that consent is not a defense.

If you are a minor, you still can be charged with PC 261.5 statutory rape. However, your criminal case would proceed through California’s juvenile court system.

• PC 261.5(b): Applies to anyone engaging 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): Applies to anyone engaging in an act of unlawful sexual intercourse with a minor who is more than three years younger than the defendant.

• PC 261.5(d): Applies to anyone 21 years of age or older engaging in an act of unlawful sexual intercourse with a minor who is under 16 years of age.​

Note that California law specifically excludes minors who are the victims of statutory rape from criminal liability for their engagement in unlawful sexual intercourse.

• PC 261.5(b) statutory rape is considered a misdemeanor. A defendant convicted of PC 261.5(b) may be sentenced up to 180 days in the county jail.​

• PC 261.5(c) statutory rape is classified either as a misdemeanor or as a felony. A defendant convicted of PC 261.5(c) as a misdemeanor may be sentenced up to one year in the county jail. A defendant convicted of PC 261.5(c) as a felony may be sentenced up to three years in state prison to be served in the county jail.​

• PC 261.5(d) statutory rape is classified either as a misdemeanor or as a felony. A defendant convicted of PC 261.5(d) as a misdemeanor may be sentenced up to one year in the county jail. A defendant convicted of PC 261.5(d) as a felony may be sentenced up to four years in the county jail.​

(The maximum jail sentences noted above assume that the defendant is not convicted of additional crimes or sentenced according to special enhancements, for example prior prison enhancements.)