Statutory Rape

Penal Code 261.5 — Statutory Rape

Under Penal Code 261.5 PC, “statutory rape” refers to having sexual intercourse with a person under the age of 18, even if  the intercourse was completely consensual and no force, fear or duress was involved.  Consent is not a defense to a statutory rape charge.

While in many statutory rape cases there is a large age gap between the defendant and victim, in some cases the age gap can be very small.  For example, a nineteen year old defendant and a 17 year old victim.

What the Prosecutor Must Prove to Convict a Defendant of Statutory Rape

In order to convict a person of statutory rape, a prosecutor must prove beyond a reasonable doubt that the person did all of the following:

  • Had sexual intercourse (even slight penetration counts) with another person, and that person was less than 18 years old when the intercourse occurred, AND
  • The person was not married to the other person at the time of the intercourse

Punishment for Statutory Rape

Statutory rape is a “wobbler” crime, which means that it can be charged as either a misdemeanor or felony based on the specific facts and circumstances of the case  The age difference between the defendant and the minor is the major factor in determining if misdemeanor or felony charges are filed. Specifically:

  • If a person is no more than 3 years older than the alleged victim, statutory rape is in all cases a misdemeanor.
  • If a person is more than 3 years older than the alleged victim, statutory rape can be charged as a misdemeanor or a felony.
  • If a person is 21 or older and the alleged victim is under 16 when the intercourse occurs, statutory rape can be charged as a misdemeanor or a felony, however, a felony charge is more likely due to the larger age gap.  Felony punishment in this situation can include up to 4 years in state prison.

Defenses to Statutory Rape Charges

Those most common defense in statutory rape cases is when the defendant had and honest and reasonable belief that the alleged victim was not under 18.  This may occur in cases of fake identifications, such as fake driver’s license, or false statements by the victim regarding his or her age.

In other cases, the strongest defense may be that, even though the victim was under 18, she was in a consensual sexual relationship with a defendant who is only slightly order than her.  For example, a high school junior having sex with a high school senior.

Contact Us Now

Schwartz & Naderi’s team of criminal defense attorneys has over 80 years of combined experience aggressively defending clients facing all types of sex-related charges, including statutory rape charges, and will strategize a vigorous defense from the moment of arrest until the completion of the case.

If you or a loved one has been charged with any sex offense, contact a Los Angeles criminal defense attorney from Schwartz & Naderi today at (310) 246-9550.

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