The California offense of statutory rape is committed by having sexual intercourse with a minor. Unlike the crime of rape, which requires the prosecutor to prove that the victim did not consent to sex, consent is not a defense to a statutory rape prosecution.
Not all acts of consensual sex with a minor are prosecuted. When a 17-year-old has sex with another 17-year-old, sensible prosecutors use their discretion not to charge either of them with a crime. The offense is more likely to be changed when an adult has sex with a minor. The younger the minor, the more likely it is that a charge will be pursued.
A number of defenses are available in California to a charge of statutory rape. The California sex crime lawyers at CMC Defense will investigate the facts underlying the charge and will choose a defense that has the greatest likelihood of success in light of the facts that the prosecutor can or cannot prove.
Statutory Rape in California
Statutory rape is also known as “unlawful sexual intercourse with a minor.” The crime is defined in section 261.5 of the California Penal Code. To obtain a conviction, the prosecution must prove each of the following facts beyond a reasonable doubt:
- The accused had sexual intercourse with another person
- The accused was not married to the other person
- The other person was under the age of 18 when the intercourse occurred
“Sexual intercourse” means penetrating the vagina with the penis. Even slight penetration violates the statute. If the accused touched or fondled but did not penetrate the vagina, the accused might have committed a different crime, but did not commit a statutory rape.
While lack of consent is not an element of the crime, if the other person did not consent, the prosecutor will probably charge the crime of rape rather than statutory rape. Rape is a more serious offense.
Males and females can both be charged with statutory rape. In fact, both participants in an act of sexual intercourse can be charged if they are both minors.
Penalties for Statutory Rape in California
The penalty for statutory rape depends on the age of the minor and, in some cases, the age of the accused.
If the minor and the accused are not more than 3 years apart in age, the offense is a misdemeanor. The maximum sentence for the misdemeanor is 1 year in jail.
If the minor and the accused are 3 or more years apart in age, the offense is a wobbler that can be charged as either a felony or a misdemeanor. If the case is charged as a felony, the potential sentence depends on the respective ages of the minor and of the accused.Unless the minor was under the age of 16 and the accused was age 21 or older, the judge can choose a sentence of 16 months, 2 years, or 3 years.
If the minor was under the age of 16 and the accused was age 21 or older, a felony charge is much more likely. If the accused is convicted of a felony, the potential sentences are 2 years, 3 years, or 4 years. Probation is also an option
The “Mistake of Age” Defense
Many states make statutory rape a strict liability offense. In those states, someone who has sexual intercourse takes the risk of later discovering that his or her partner was a minor. In those states, the is guilty of statutory rape even if the accused honestly believed that the alleged victim was an adult.
California is not a strict liability state. Someone who is accused of statutory rape in California should not be convicted if he or she mistakenly believed the minor to be an adult. The “mistake of age” defense has saved countless Californians from statutory rape convictions.
The mistake of age defense can succeed if two things are true:
- the accused actually believed the sex partner was 18 or older (or the prosecution cannot prove otherwise), and
- that belief was reasonable.
For example, assume that Andy Accused meets Millie Minor on the beach. Millie looks very much like an adult to Andy and to everyone who sees her on the beach. When Andy asks Millie how old she is, Millie says “I just turned twenty.” Millie is only 16, but she lies because she knows Andy will reject her if she tells the truth. Believing that Millie is 20, Andy asks Millie to go back to his place for a drink, and an hour later they have sexual intercourse. Andy did not commit a crime because:
- Andy actually believed Millie was an adult, and
- Andy’s belief was reasonable, since Millie looked like an adult and lied about her age.
Even if the topic of age never comes up, the accused’s belief might be reasonable based on appearance. The prosecutor will bring the minor to court scrubbed clean of any makeup and wearing a schoolgirl outfit, but Facebook and other social media photos showing the girl’s usual appearance are a fruitful source of evidence to prove that any reasonable person might have mistaken her for an adult.
The ”We Didn’t Have Sex” Defense
Minors are immature. They sometimes accuse adults of having sex with them because they are being vindictive or manipulative, because they want sympathy, or because they enjoy the drama (and perhaps status among peers) that the accusation will generate.
False accusations might also be based on mistaken identity, particularly when the accused and the minor are strangers and there is no DNA evidence to support the minor’s claim. Minors who used alcohol or drugs may have trouble remembering the events of an evening, including their sex partner.
Other defenses are sometimes possible. For example, if the sexual encounter occurred near the accuser’s 18th birthday, the prosecution may be unable to prove whether the act occurred before or after the accused turned 18. If it occurred at any time on the accuser’s 18th birthday, the defendant isn’t guilty.
If there is no doubt that the accused had sexual intercourse with a minor, the focus is on making the charge a misdemeanor rather than a felony, or making an agreement to defer a prosecution. The California criminal defense attorneys at CMC Defense can advise defendants who have been charged with statutory rape of the defense that is best suited to their facts and circumstances.
The following article is by attorney Stephen Cobb
Factors considered when determining sentencing in White collar crimes
Most white collar defendants have no prior experience with the criminal justice system and the fear of potential penalties and the uncertainty of their future haunt them most of the time. Depending upon the nature of the white collar crime, criminal penalties or civil lawsuits can be brought either by the government or by the victims of the offense. Civil liabilities may be imposed as a consequence of the suits in addition to the criminal case.
The penalties for white collar crimes vary depending upon the severity of the crime. Some of the laws impose a monetary fine and some impose a jail sentence or sometimes a combination of two. Criminal laws permit penalties that are quite severe, but maximum sentence is rarely received by defendants.
There are defined guidelines that the courts are supposed to follow. These guidelines depend upon the jurisdiction. They are meant to ensure a uniform system of criminal sentences. Because of these guidelines, the sentencing judges do not have a lot of choices to impose a sentence. The guidelines consider the previous criminal record of the defendant and the crime which the defendant is accused of.
Then there are cases when the court may consider different factors that will let it to proceed or impose a sentence different from that required by the guidelines. Those who do not have any prior criminal record are sometimes sentenced to probation, a suspended jail sentence or a sentence that is shorter than the maximum sentence. Fines can be imposed as well and the defendant may be required to compensate any losses or pay restitution.
The “Easy Time” Myth
There is a false belief that offenders accused of white collar crimes receive an easy time in jail that is comfortable with minimum-security institutions. Although many sentences of white collar crimes are served in minimum-security prison, it isn’t necessary that all of the defendants will receive a minimum-security prison. The correlational authorities decide where a person convicted of a white-collar crime should serve his sentence. There isn’t a certainty that defendants of white collar crimes are given minimum-security prison but efforts are made to place prisoners in appropriate facilities.
A civil case may arise out of a white collar criminal prosecution. It can be brought by the government or by the victims of the crime or by both.
Disgorgement, returning the government any profits obtained by the crime, forfeiting the victims of the offense or any other harm that is provided by the law, can be the result of a civil action. Sometimes, the government seizes any property purchased with the money acquired by the crime. Victims of white collar crimes are given the choice to bring civil actions of their own. The financial losses suffered because of the crime can be recovered through civil actions.
Employment and Social Consequences
A person convicted of a white collar crime may find it difficult to get employment. Defendants of white collar crimes also face social stigma and they may be considered deceitful and dishonest. Therefore, people show reluctance to hire an individual who is convicted of a white collar crime. A person convicted of a white collar crime may be denied a professional license or they may lose their license if they already have one.
If a non US citizen gets convicted of a white collar crime, he or she may be removed from the States or can face other immigration issues. Other than removal, someone convicted of a white collar crime may also be adversely affected in his ability to become a permanent US citizen.
Criminal Defense Attorney Stephen Cobb provides personalized representation for criminal defense cases in FL. Call for FREE Initial Consultation (850) 466-1522
Fullerton police have arrested a man on drug charges and are holding him as a “person of interest” in an incident where a driver is suspected of luring a teenage girl into his pickup truck. According to a news report in The Orange County Register, the man has not been charged in that incident and detectives are still investigating the case.
Attempt to Lure Teen
Officials said the incident occurred on April 24 when a 16-year-old girl was headed home walking south on Richman Avenue just south on Valencia Avenue, when a man in a tan 2003 Ford F-150 pickup truck pulled up alongside her. The girl did not know the man and his name has not been released by the authorities. They said the man stopped the truck against oncoming traffic yelled at the girl several times to “get in the car.”
The girl continued walking and the man followed in his truck. He added that the girl was scared and took out her cellphone to call someone for help. The man drove away. Investigators say they want to know if anyone else has been approached by the man, has information on the truck or who has been the victim of a similar crime.
Crimes Involving Minors
The term “child enticement” refers to the act of adults luring children to engage in sexual acts. Child enticement is a term that could encompass severe discrete crimes such as child pornography, kidnapping and prostitution. A “child” under California law, is a person under the age of 18. Under California law, “child enticement” may include one of several acts such as:
- Seducing a child: It is a crime to try and seduce a child or someone who is perceived to be a child by the defendant, with the purpose of engaging in sexual conduct. It is also illegal to seduce a child by giving or electronically sending material such as pornography to the child, meant to arouse sexual feelings. This law applies regardless of whether a meeting or conduct actually takes place and it includes materials given or sent to the child in person or through the Internet. If the materials were given to the child by a parent, guardian or teacher as part of legitimate sex education, it does not constitute a crime.
Seducing a child is prosecuted as a misdemeanor and is punishable with a fine of up to $1,000, up to six months in jail and/or informal probation. Second or subsequent offenses are felonies for which the defendant may be fined up to $10,000 and receive formal probation and up to three years in prison.
- Contacting a child: California Penal Code Section 288.4 states that it is illegal to arrange a meeting with a child with the intent to expose that person’s genitals, view the child’s genitals or to engage in sexual activities with the child. The penalties escalate if the meeting actually takes place. A conviction could result in a year in county jail and/or a fine of up to $5,000. A second and subsequent conviction could result in a prison sentence. If the meeting actually takes place those convicted could get a prison sentence of up to four years.
- Kidnapping: It is against the law for an adult to hire, persuade or entice a child under 14 to go somewhere with an adult for illegal purposes. Kidnapping may also include the use of force. This means scaring, threatening or overpowering the child in a way that convinces him or her to go with the adult against the child’s will.
This is a “wobbler,” which means it could be charged as a misdemeanor or felony. If convicted of a misdemeanor, you will have to pay a $1,000 fine and/or spend up to one year in jail. If convicted of felony kidnapping defendants face up to four years in state prison and a fine of up to $10,000. For second and subsequent offenses, defendants may face up to five years in state prison.
- Employing a minor: It is against the law to hire a minor for sexual conduct such as prostitution or other illegal activity such as producing pornography. Penalties for this crime may vary, but generally it includes up to eight years in prison and/or a $50,000 fine.
In addition to these types of criminal consequences, a person convicted of a child sex crime could lose their job; lose any professional licenses such as the license to practice law, medicine, social work, psychology or other professions; lose child custody; and/or face a civil lawsuit for damages the alleged victim has suffered. You may of course be sentenced to jail or prison time and be required to register as a sex offender. Being registered as a sex offender makes it difficult for individuals to obtain job and housing.
What Actions Should You Take?
If you have been accused of engaging in inappropriate behavior with a child, please remember that it is an extremely serious issue. Such accusations often lead to criminal investigations. There are several steps you can take to protect your rights. First and foremost, avoid making statements to police. Try not to answer any questions, make any statements or engage in a conversation or discussion until you have consulted a sex crime defense attorney. Remember that anything you say can, and most likely, will be used against you in court.
Consult with a criminal defense lawyer right away for information and advice on the next steps to take. It would be in your best interest to contact a lawyer as soon as you learn that an investigation is underway. Apart from advising you, your attorney can immediately begin communicating with anyone who is trying to question or contact you regarding the allegations.
Gather and preserve any physical evidence in your possession connected to the investigation. This may include photos, videos, records, letters, emails, etc. Make a list of possible witnesses who can corroborate your account of what occurred. If you or a loved one is facing child sex crime charges, please contact an experienced Orange County child sex crime lawyer today for a free consultation and comprehensive case evaluation.
A state senator from Los Angeles is pushing a bill through the Legislature that would bar the state of California from prosecuting children under the age of 12. According to a news report in the Sacramento Bee, in 2015, 874 cases involving children were referred to California juvenile court for crimes ranging from curfew violation and truancy to vandalism, theft, assault and robbery. This is according to a UCLA analysis of state justice department data.
Senator Holly Mitchell believes it makes more sense to understand the source of the child’s problems that led up to the crime and use social services to help them instead of locking them up. Under the bill, instead of doing time in a jail cell at juvenile hall, children would be redirected to dependency court, mental health counseling and other local resources to find help and rehabilitation. Senate Bill 439 is sponsored by the Children’s Defense Fund and other juvenile justice organizations.
How the System Works Now
Under the current juvenile justice system, children can be arrested for crimes or for status offenses based on their age such as curfew violations, truancy or running away. Law enforcement officials are arguing that the juvenile justice system is already built around rehabilitation and that it is rare for children under 12 to be locked up. In many cases, children 12 and under are often cited and returned to their parents. Young children are, however, taken into custody when an officer determines the crime is serious enough or that the child is a danger to a victim. In those cases, the child offenders are sent to juvenile hall and the case is handed over to the county probation department.
The District Attorney then determines whether to pursue charges. Within three days of the arrest, a detention hearing takes place to determine whether the child should remain in juvenile hall or be returned to his or her family. Juvenile cases receive bench trials. Only 69 out of 874 cases that prosecutors referred to juvenile court in California resulted in the equivalent of a guilty verdict in the year 2015. Advocates argue that it is a waste of time and money to prosecute children when few charges are actually sustained.
Mitchell points out that cases of extreme violence involving children 12 or under are quite rare. No children were referred to the court for homicide or manslaughter and only one child was charged, but not convicted of rape in 2015. Mitchell calls opponents of the bill individuals who seem to be in denial about the realities of the disproportionate numbers of minority youth who are experiencing stop-and-frisk and being charged with crimes their white counterparts are not being charged with.
Incarceration is Not the Answer
Studies show that children who are arrested or charged with the crime or sent to juvenile hall are more likely to have histories of child abuse, learning problems or behavioral conditions that have not been addressed. Research consistently shows that children who are processed in the juvenile justice system are more likely to engage in future criminal behavior. Those who have experienced that say it was not a positive experience or an experience that “scared them straight,” but a step in the wrong direction. Child advocates say pathways outside of the juvenile justice system serve children better and prevent them from becoming repeat offenders in the future.
In addition, children’s ability to distinguish right from wrong and comprehend the serious consequences of their actions as opposed to adults, is another reason why rehabilitation is key. Take the case of 10-year-old Joseph Hall who shot and killed his father. His case got national attention. Right before the shooting his father, Jeffrey Hall, threatened to turn off the smoke alarms and burn down the house as his family slept.
The boy said as he was sitting in a police car that she shot his dad because the man abused him and his family. He suffered from developmental disabilities and expressed regret for his actions even asking police if people “get more than one life.” His case prompted Senate Bill 395, the law requiring anyone under 18 to consult with an attorney before waiving their Miranda rights.
If Your Child Has Been Accused of a Crime
The first step to take if your child has been accused of a crime is to consult an experienced Orange County juvenile crime defense lawyer. This is crucial to your child’s case. First, it helps to prevent self-incrimination. As police gather evidence in your child’s case, they often want to speak to your child and try to pressure him or her into agreeing to an interview or giving a statement.
This could end up in serious charges or could be potentially damaging to your child’s case. Children are very likely to say something that could incriminate them. It is important to remember that children have constitutional rights just like adults including the right to legal representation. They are not obligated to speak to law enforcement without first consulting an experienced criminal defense lawyer.
Having an attorney on your side will also help prevent false confessions. Police officers, counselors and other parties are easily able to manipulate the gullibility and impressionability of young children and coax them into giving a confession. Police may not be required to seek a parent’s permission before speaking to a child suspect about a potential crime. However, a juvenile does have the constitutional right to remain silent and the right to seek counsel from a defense attorney before saying anything to police.
As Orange County juvenile crime defense lawyers who protect the rights of youth, we strongly believe that rehabilitation – not punishment – is the key to preventing recidivism among young people. If your child has been arrested on suspicion of a crime, he or she needs quality legal representation to help secure that valuable second chance at life. A child still has constitutional rights and the right to legal representation. If your child has been charged with a crime in Orange County, call us at (888) 250-2865 for a free, confidential consultation and case evaluation.
California lawmakers are promoting bills, which they say, reflect research showing that children’s brains are different from adults and they should therefore be treated differently. According to a news report in The Associated Press, legislators are proposing four bills, which are intended to keep younger offenders out of the criminal justice system. They are part of a package of eight proposals that will also lessen restrictions on adult offenders, including sex offenders.
Understanding These Laws
SB 190 would end the practice of collecting fees from the families of juvenile delinquents while SB 395 will require minors to talk to an attorney before they give up any of their legal rights. This particular law was prompted by the case of a 10-year-old SoCal boy who shot and killed his father, a white supremacist. In 2011, the boy said he understood what he was doing when he confessed to shooting his father, a local neo-Nazi leader.
Another bill will keep children 11 and younger out of juvenile courts while yet another proposed legislation states minors cannot be sentenced to life without parole. Instead of incarcerating these young offenders, legislators are proposing alternatives such as crime prevention, rehabilitation and family ties, in keeping with children’s development. A UC Berkeley School of Law study titled “Making Families Pay” says the fees disproportionately punish minorities and harming them socially and economically.
What We All Need to Know
There are several myths and misconceptions many of us buy into with regard to the juvenile justice system. Here are some of those myths, debunked.
Children or adolescents are not all that different from adults.
Research shows that the average adolescent brain is rather different from the average adult brain and the neuroscience that tracks these differences is making a real impact on how we treat children who come into contact with the legal system. New brain science shows that adolescents have intellectual and cognitive capabilities that far outpace their emotional and social maturity. This makes them more impulsive and thrill-seeking, less able to understand the consequences of their actions.
Once a bad kid, always a bad kid.
This is certainly not true. When exposed to average experiences in the community, about 90 percent of law-breaking young people simply stop doing what they’re doing. This is because as their brains mature, adolescents start to gain the ability think clearly about future consequences as opposed to instant gratification. Their stakes in society increase with jobs, homes and relationships developing.
Jail will teach the bad kids a lesson.
When teenagers are sent to adult jail, they are thrown into this toxic environment that could very well do permanent damage, and it usually does. The chronic stress in these environments, physical attacks, sexual assaults, isolation and lack of rehabilitative activities almost ensures that they will become not just repeat offenders, but violent offenders.
These children chose to be bad.
The children who make it to the juvenile justice system are especially vulnerable or at-risk kids. Often, they are poor and come from communities of color. They are likely to have learning disabilities and mental illnesses. Most of these teens have been exposed to multiple childhood adversities including poverty, violence, parental incarceration, deaths or injuries in the family, parental substance abuse and neglect, physical abuse and sexual abuse. The commission of every crime involves individual choice. However, in truth, many of these children are nothing more than a victim of their environment and circumstances.
Juvenile hall is worse than adult jail.
This is certainly not true. Teens who are placed in juvenile halls rather then adult prisons show lower recidivism rates and higher rates of social involvement. The Massachusetts Department of Youth Services, for example, has created a program to rehabilitate juvenile offenders. It offers programs that are specifically designed to address the problems these children face such as challenges in education, emotional issues, substance use and mental health needs. DYS has managed to minimize these children’s exposure to delinquent peers, minimize incarceration and provide more support for education and employment initiatives. The department has seen a slow and steady decline in repeat offender rate and an increase in the demand for services even after the teens have been discharged.
California’s Juvenile Justice Program
While California’s adult justice system has punishment of offenders as a goal, the juvenile justice system aims to treat and rehabilitate juvenile offenders. The juvenile justice system attempts to rehabilitate these youth through the use of treatment programs, detention, incarceration and community supervision. Once a juvenile offender is arrested, a law enforcement officer has the discretion to release the juvenile to his or her parents or take the youth to juvenile hall. Often, juvenile halls accept only the most violent arrestees turning away the others.
If an offender is placed in juvenile hall, the probation department and/or the district attorney can choose to file a “petition” with the juvenile court, which is similar to filing charges in adult court. The prosecutor may request that the juvenile be “remanded” to adult court because the juvenile is “unfit” to be adjudicated as a juvenile due to the nature of his or her offense. For a juvenile who is adjudicated and whose petition is sustained (tried and convicted) in juvenile court, the offender can be placed on probation in the community, placed in a foster care or group home, incarcerated in the county’s juvenile ranch or camp, or sent to the Youth Authority as a ward of the state. For a juvenile tried and convicted in adult court, the offender can be sentenced to the Department of Corrections, but can be placed in the Youth Authority through age 24.
Contacting an Experienced Lawyer
All too often, parents of children who have been accused of crimes fail to seek the counsel of experienced juvenile crime defense lawyers. You simply cannot assume that the criminal justice system will go easy on your child simply because they are not adults. Our lawyers will focus more on giving your child that valuable second chance. If your child is facing criminal charges, please contact us at (888) 250-2865. We offer free consultations and comprehensive case evaluations.