Can I Be Charged with Rape if the Minor Consented?

A 19-year-old boy is dating a 17 year-old-girl from the local high school. No problem. There is only a two-year difference in age and nowadays that's common behavior amongst teenagers. However, if he is having sex with the minor and lives in California, he can be prosecuted for Statutory Rape even if the sex was willing and consensual. That's because in the eyes of the law, a minor is incapable of giving consent to have sex because of his or her age (under 18). The age of the victim who is incapable of giving consent varies from state to state.

California Law

According to California Penal Code section 261.5 PC, it is a crime for anyone age 18 or older to have sex with a person under the age of 18 regardless of whether or not the person gave their consent or whether any force was involved. This means it is illegal for a 19-year-old boy to have sex with his 17-year-old girlfriend, even if the sex was consensual. Even minors can be charged with this crime.

These laws are based on the presumption that children under the age of 18 are not capable of giving informed consent to sex. Sex with a minor is legally referred to as Statutory Rape and is also known as “unlawful sex with a minor,” or “unlawful sexual intercourse.”

To convict an individual of Statutory Rape, a prosecutor must prove these elements:

  • The defendant had sexual intercourse with another person
  • The defendant and the alleged victim were not married to each other at the time of the act
  • The victim was under the age of 18.

Penalties for Statutory Rape

In California, Statutory Rape is a “wobbler,” meaning it can be charged as either a misdemeanor or a felony. Penalties for Statutory Rape depend on the age difference between the offender and the victim. If the defendant is no more than three years older than the alleged victim, Statutory Rape is always charged as a misdemeanor. If the defendant is over three years older than the victim, the crime can be charged as either a misdemeanor or a felony.

An individual charged with misdemeanor Statutory Rape may face probation, up to one year in jail, and/or a fine of up to $2,000. Felony statutory rape is punished by one, two, or three years in jail. Where the defendant is over the age of 21 and the minor is under 16, the defendant may face a prison sentence of two to four years along with a fine of $25,000.

A conviction of Statutory Rape does not require lifetime sex registration in the State of California. However, if the offender is convicted of related offenses, such as lewd and lascivious acts with a child or rape, registration will likely be required.

Legal Defenses

As with any sex crime, you should work with a qualified criminal defense lawyer who can help you avoid jail time or have your charges reduced or dropped. Here are some of the common defenses that may apply in a Statutory Rape case:

  • You honestly and reasonably believed the alleged victim was old enough to consent to sexual intercourse
  • You were falsely accused and the sexual intercourse did not occur.

Experienced Los Angeles Sex Crimes Lawyers

If you are being investigated or charged with Statutory Rape, speak to an experienced Los Angeles sex crime attorney immediately. Do not attempt to talk your way out of your charges with law enforcement or with the victim's parents. Stephen G. Rodriguez & Partners bring over 70 years of combined criminal law experience protecting the rights of accused individuals in Los Angeles. We encourage you to get in touch with our firm to evaluate the strength of the prosecutor's case and assist you in preparing a strong defense.

Contact us today to discuss your case during a free consultation.

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