Sex with a Minor
Sex with a minor, also known as "Statutory Rape," is sexual intercourse with a minor who is not the spouse of the perpetrator. A minor in California is a person under 18 years of age. States may define a minor differently. For example, in Texas a minor is anyone less than 17 years of age. Sex with a minor is illegal even if the sex was consensual. If the sex was not consensual, the perpetrator could be charged with rape or some other sex crime involving force or coercion. In cases involving sex with a minor ("Statutory Rape") the minor is presumed to be age 14 or older. Consensual sex with a minor under 14 years of age is
not considered Statutory Rape: Instead it is part of the law called child sexual abuse, generally covered under California Penal Code section 288 – Lewd & Lascivious Acts on a Child.
No minor in California can fully, lawfully consent to sexual intercourse. In cases involving sex with a minor, the actual consent of the minor to participate is not considered legal consent. The crime of consensual sex with a minor
over age 13 (Statutory Rape) does not require force, coercion, or threats.
Sex with a minor is prosecuted under Penal Code section 261.5 in California. To obtain a conviction, the prosecution must prove:
- Sexual intercourse occurred;
- Neither person was married to each other at the time of the act; and
- One of the participants was under the age of 18.
Sex with a minor is a wobbler, and so can be charged as either a misdemeanor or a felony depending on the circumstances. The biggest factor in determining whether this crime will be charged as a misdemeanor or a felony is the difference in age between the victim and the defendant. If the defendant is no more than three years older than the victim, he or she will likely be charged with a misdemeanor. If the adult defendant is over three years older than the victim, he or she will likely be charged with a felony. If the victim is 16 or older and the defendant is over 21 he or she can be charged with either a misdemeanor or a felony. Misdemeanor convictions carry penalties of up to one year in county jail and a fine of up to $1,000. Felony convictions carry penalties of 16 months to four years in state prison and up to $10,000 in fines. Neither a misdemeanor nor a felony conviction requires sex registration.
Sex crimes involving minors are aggressively prosecuted in California and come with serious penalties. If you have been charged with "Statutory Rape" or are being investigated for any sex crime involving a minor, contact an experienced sex crimes defense attorney immediately to learn about your rights, defenses, and legal options.