At a quick glance, many would think that there is no way consensual sex could be a crime. After all it makes sense if both parties agreed to it, but there is one stipulation in regards to age. If sexual activity occurs between people and either one, or both are under the age of 18, even if it is consensual, could end up resulting in criminal prosecution. When consensual sexual activity occurs between two consenting individuals, and one or both are minors, it is commonly referred to as “statutory rape.” This occurs when the activity was consensual, meaning both parties agree and neither was forced, so this does not fall under the same designation as forcible rape. But in the State of California, a minor is not able to provide “consent” for sexual activity, so it is considered a form of rape under the statute.
It is important to understand the law and specific provisions to ensure you do not have criminal charges brought against you. This brief article will provide information regarding the specific laws as it relates to the age gap between an “offender” and a “victim.” If you are being accused of statutory rape or a similar offense, it is important to understand the impact of the age gap between the offender and victim, and other information that could have long term consequences. It is also important to hire a qualified defense attorney who is knowledgeable in the defense of sex crimes to ensure the best outcomes.
Penal Code Section 261.5 – Statutory Rape
In the State of California under PC 261.5 it is stated as such:
(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.
This means the state may prosecute an adult (18 years or more) if they have sex with anyone under the age of 18.
For example, if a 19-year-old Samantha is working at a retail store and begins a relationship with a 17-year-old co-worker, Steve, there could be an issue. If they have any type of sexual intercourse, Samantha could be charged with statutory rape.
Age Gap Consideration
In the statute, there is a specific clause that states:
(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
In the example above, Samantha would likely be charged with a misdemeanor under this penal code. The age gap is not more than three years.
However, if Samantha was 22 years old and Steve was still 17 years old, that would exceed the three-year age gap and Samantha could face stiffer sanctions.
(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
There are also other considerations that must be discussed. The age gap significantly changes the younger the victim is when the sexual activity occurs.
(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
The punishment increases significantly if the child is under the age of 16 and the offender is over the age of 21. If the district attorney proves the age gap and age of first sexual activity happen during this time frame, there is the possibility for a lengthy jail sentence and community supervision. It is vital if you are charged with this offense you consult with an attorney to ensure you can present the best defense and avoid a lengthy jail sentence.
In addition to the potential jail time, a conviction of statutory rape may also include civil penalties. The age gap between the victim and offender also makes a difference in the amount of fine that may be imposed.
(e) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
In the example provided, if convicted, Samantha could also be required to pay up to $5000 in civil penalties because the age gap exceeded two years. If Steve was only 15 when the sexual activity occurred and Samantha was 22, she could be fined up to $25,000. Again, just like in the jail sentence, the age gap and lower the age of the victim, the civil penalties can increase drastically.
Statutory rape does not require sex offender registration; however, there is a significant amount of repercussions as is for any sex crime convinction. It is vital you receive proper counsel when dealing with any type of sexual charge to ensure you are being adequately represented and understand the impact and consequences of a potential conviction. Hiring a qualified attorney can significantly improve the outcome.