Statutory rape is one of the most misunderstood criminal charges in California. Many people assume that if both individuals agreed to have sex, then no crime occurred. Under California law, that is simply not true.
If you or a loved one is being investigated or charged, it is critical to understand how statutory rape works, how it differs from rape, and what defenses may be available.
What Does the Law Say?
Under California Penal Code section 261.5, statutory rape—also known as “unlawful sexual intercourse”—occurs when a person engages in sexual intercourse with someone under the age of 18 who is not their spouse.
To prove this charge, the prosecution must establish:
- Sexual intercourse occurred
- You were not married to the other person
- The other person was under 18 at the time
Unlike traditional rape charges, there is no requirement that force or threats were used. In many cases, the individuals were in a consensual relationship.
Statutory Rape vs. Rape
This is where people get confused.
Rape (Penal Code 261) involves non-consensual sex—typically through force, fear, or coercion. Statutory rape is different. It is based entirely on age. Even if both people agreed to the sexual act, California law says a person under 18 cannot legally consent. In other words:
- Rape = no consent + force or coercion
- Statutory rape = consent is legally invalid due to age
Age of Consent in California
California has a strict age of consent: 18 years old. This means:
- A minor cannot legally agree to sexual intercourse
- It does not matter if they initiated the relationship
- It does not matter if the relationship was romantic
Even more surprising, if both individuals are under 18, they could technically both be charged under the law. While prosecutors may use discretion in those situations, the statute still applies. The only exception is marriage, which requires parental consent and a court order.
Penalties for Statutory Rape
Statutory Rape under Penal Code Section 261.5 is considered a “wobbler,” meaning it can be charged as either a misdemeanor or a felony depending on the circumstances.
Age Difference Matters
- Less than a 3-year age difference: Typically a misdemeanor
- Up to 1 year in county jail
- Fines and probation
- More than a 3-year age difference: Can be charged as a misdemeanor or felony
- Up to 1 year in jail or potential felony consequences
Adult (21+) with Minor Under 16
If you are 21 or older and engage in sexual intercourse with someone under 16:
- You may face felony charges
- 2, 3, or 4 years in state prison
- Significant fines and penalties
Every case is fact-specific, and the way it is charged can have serious long-term consequences.
Common Defenses to Statutory Rape
Being accused does not mean you are guilty. Several defenses may apply depending on the facts:
- Good faith belief of age: You reasonably believed the other person was 18 or older
- Marriage: You were legally married to the alleged victim
- No sexual intercourse: The conduct does not meet the legal definition required under PC 261.5
- Age dispute: The alleged victim was not actually under 18
It is also important to understand that statutory rape specifically requires sexual intercourse. Other conduct may fall under different statutes, but not Penal Code 261.5.
Who Decides to File Charges?
The alleged victim does not have to “press charges.” In many cases, parents, schools, or law enforcement report the situation, and the district attorney decides whether to prosecute.This means charges can move forward even if the alleged victim does not want to pursue the case.
Before You Say Anything to Police, Read This
Statutory Rape cases are often built on what you say during a police interview—your words, your admissions, and the timing of them—and one mistake can turn a misunderstanding into a felony filing. You may think you can “clear things up,” but that’s exactly how cases get built. Don’t give investigators the evidence they’re looking for. Call 213-481-6811 and learn how we can assist you through this difficult time.