Unlawful Sex With a Minor

The crime of unlawful sex with a minor, or as it is more commonly known, "statutory rape" occurs when an adult engages in sexual intercourse with a minor. Under the law, an adult is anyone age 18 or over, while a minor is anyone under the age of 18.

Statutory rape is prohibited by California Penal Code section 261.5, and the statute is written so as to be gender neutral. This means that both male and female adults can be convicted of the crime, and there is no variation in the application of the statute as between men and women. The statute also does not distinguish between consensual and non-consensual sex.

Section 261.5 applies specifically to the act of sexual intercourse. In other words, it does not apply to sexual behavior generally. Sexual intercourse is defined as penetration of the female sex organ with the male sex organ. Any other type of sex or sexual behavior does not apply for purposes of statutory rape. That said, there are other criminal statutes that can, and often will, apply in cases involving sexual contact, short of sexual intercourse, between adults and minors.

The law also does not apply in cases where the minor and the adult are legally married. While marriages between adults and minors are quite rare, it is a legal possibility. California law permits minors of any age to get married, but only with a court order and parental consent. For the most part, the law exists so that minors who become pregnant will have the option to be married before the child is born.

While Penal Code section 261.5 is written without any requirement of a mental state, such as "knowingly" or "willfully," the law is not what is commonly know as a strict liability crime. For a strict liability crime, the defendant's intent is irrelevant. A charge of statutory rape can potentially be defended or mitigated by a claim that the defendant did not know that the person with whom they had sexual intercourse was a minor.

The penalties that can apply to a statutory rape charge depend largely on the relative ages of both the defendant and the victim. In some cases the defendant may only be guilty of a misdemeanor, while in other cases the defendant will be guilty of a felony. 

Standards in Different Jurisdictions:

The application of statutory rape laws is not uniform across the United States. Each state has their own standards, and their own age of consent.

In some states, the age of consent is 16, and in other 17. In California, the age of consent is 18. Individuals under theses ages in the various states where they apply, by law, are incapable of giving consent.

There are also a number of states that have what are called "Romeo and Juliet" laws, where under certain circumstances, such as a preexisting intimate relationship when both individuals were minors; the state cannot prosecute for statutory rape. California does not have any version of a Romeo and Juliet law.

Examples of Statutory Rape:

  • Jerry and Beth are both seniors in high school. Jerry is 17 while Beth just turned 18 two months ago. While Jerry and Beth have been flirting with each other in class for some time, they are not in a relationship. Unfortunately, Jerry's parents and Beth's parents do not get along, and in fact, hate each other with a passion. Jerry and Beth both attend a house party at a friend's house over the weekend, and they end up having sex. When Jerry gets home, he proudly tells his Dad that he is no longer a virgin because he just had sex with Beth. Knowing that Beth is over the age of 18 and Jerry is still a minor, Jerry's dad reports Beth to the police for having sex with a minor because he wants to hurt Beth's parents. Beth is then arrested and prosecuted for misdemeanor statutory rape, which carries a maximum sentence of 1 year in county jail.

  • Peter and Wade are high school sweethearts. They have been dating each other since Wade's freshman year when Peter was a sophomore. Wade is now 17 years old and a junior, Peter is an 18 year old senior. One day after school, the two go to Wade's house believing that nobody will be home for several hours. Peter begins to perform oral sex on Wade, and a couple of minutes later Wade's mom comes through the front door and catches them. Wade's mom had no idea that he was gay, and due to her conservative religious upbringing is not at all accepting of her son's homosexuality. Knowing that Peter is over 18 years old, she reports him to the police, believing that he can be charged with statutory rape. Peter is then arrested. Because statutory rape requires sexual intercourse, and sexual intercourse, by definition, can only occur between a male and a female, Peter is not charged with statutory rape. Instead, he is charged under California Penal Code section 288a, "Oral Copulation With a Minor." The prosecutor decides to charge the crime as a felony, exposing Peter to a maximum of 3 years in prison.   

  • Todd is a 24 year old college graduate that just began working as a clerk for a law firm near where he went to school. He doesn't make a lot of money, so he tends to spend most of his weekends going to college parties, as he is friends with several students still attending his alma mater. At one such party, Todd reached his usual level of inebriation fairly quickly, and was in an especially good mood because he had a good week at work. He was more outgoing than normal and started chatting up a group of what he believed were college girls, as they all appeared to be over the age of 18. In fact, they were a group of high school girls, aged 15 and 16, who were invited by an older friend who attended the college. Todd hit it off with one of the girls, named Kelly, and after a couple of drinks, they decided to go upstairs for some privacy. They ended up having sex in an upstairs bedroom. Afterwards, Kelly left the party and Todd went back downstairs, continued to enjoy the party and ended up spending the night. The next morning, Kelly, her mom and a police officer arrived to the house where the party had been held. Kelly had told her mom everything that had happened. Because this was a college party, Kelly's mom believed that Todd must have been an adult, while Kelly was only 15. For this reason, she called the police, and an officer accompanied them back to the house, where they found Todd about to leave. Todd admitted to the police officer that he was 24 years old and that he had sex with Kelly. Todd was then arrested and charged with felony statutory rape.    However, Todd had a good defense that he reasonably believed that Kelly was over  the age of consent.     

How Does a Prosecutor Prove Statutory Rape:

For a defendant to be proven guilty of statutory rape, a prosecutor must prove the following:

  1. The defendant is an adult, over the age of 18;
  2. The defendant engaged in sexual intercourse with a minor, under the age of 18; and
  3. The defendant did not honestly and reasonably believe that the minor was over the age of 18.  

Penalties For Statutory Rape:

The penalties for unlawful sex with a minor vary significantly depending on what the relative ages of the defendant and the victim happen to be. Depending on these relative age differences, the crime will either be a misdemeanor or a felony. There are also civil penalties imposed on the defendant, with the amount depending on the age differences.

Misdemeanor - when the defendant is no more than 2 years older than the victim:

  1. Imprisonment in a county jail for up to one year; and/or
  2. A civil penalty of up to $2,000.00.; and/or
  3. Three years of summary probation.

Misdemeanor - when the defendant is between 2 and 3 years older than the victim:

  1. Imprisonment in a county jail for up to one year; and/or
  2. A civil penalty of up to $5,000.00.; and/or
  3. Three years of summary probation.

Felony - when the defendant is more than 3 years older than the victim:

  1. Imprisonment in a county jail or state prison for up to three years; and/or
  2. A civil penalty of up to $10,000.00.; and/or
  3. Five years of formal probation.

Felony - when the defendant is at least 21, and the victim is under 16:

  1. Imprisonment in a county jail or state prison for up to four years; and/or
  2. A civil penalty of up to $25,000.00.; and/or
  3. Five years of formal probation.

In addition to the penalties listed above, each defendant convicted of statutory rape is required to pay a fine of $70.00 to be used for state-sponsored educational programs, and will in most cases be required to register as a sex offender. However, unlike many other sex crimes that require sex offender registration, the registration period required for individuals convicted of statutory rape typically only extends through the period of probation for the defendant, rather than a lifetime registration.

Defenses to Statutory Rape Charges:

  • Mistake of Fact - The defendant actually and reasonably believed that the victim was at least 18 years old, and therefore was not a minor;
  • False Accusation - The defendant was falsely accused of having sex with a minor. This can happen as the result of jealousy or anger, on the part of either the minor or their parents;
  • Statute of Limitations - If an alleged misdemeanor statutory rape occurred more than 1 year prior to the prosecution, or more than 3 years prior to prosecution for a felony statutory rape, the statute of limitations has expired and charges must be dismissed;
  • No Sexual Intercourse - If an adult engages in sexual conduct with a minor, but does not engage in sexual intercourse (penetration of a female sex organ by a male sex organ,) then a defendant cannot be convicted of statutory rape, but may potentially be prosecuted for a different sex crime.  

Actual Case:

John, a 19 year old, was charged with the unlawful sex with his girlfriend, Melissa, who was 16 years old.  Melissa was a willing participant in sexual conduct with John, but Melissa’s parents filed charges a complaint with the police.  Melissa had run away from home prior to the trial, but the D.A. still insisted in prosecuting the case.  At trial I was able to convince the jury that they should engage in “jury nullification” – that is find the defendant not guilty because the act did not merit a criminal conviction for John.  The jury agreed with me and found that John was not guilty.

How We Can Help:

Attorney David Foos, has over 40 years’ experience representing those accused of sexual crimes.  David first started as a Deputy Public Defender where he represented clients on all manner of charges and tried over 40 cases before a jury.  After his stint as a Public Defender, David was elevated to the bench as a Court Commissioner at the Sacramento Superior Court.  David presided as a Judicial Officer for 16 years, hearing cases from traffic to misdemeanors, to felonies. David went into private practice 11 years ago, and now puts all his experience, knowledge, and relationships to bear in fighting for you to accomplish the best possible outcome in your case.  David and his team of investigators will analyze your case and determine the best defenses to pursue.  David’s team will interview all the important witnesses and if favorable to you, present this evidence to the prosecution.  David has nurtured many important relationships during his over 40 years as a practitioner and will use these relationships to benefit you in your case.  If you or a loved one have been accused of a crime, do not hesitate to call our Sacramento Criminal Lawyer at 916-779-3500, or reach him on-line at This email address is being protected from spambots. You need JavaScript enabled to view it..


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