Sex Between Two Minors and Statutory Rape

Statutory Rape Between Minors

Over the years, the issue of statutory rape has been a complex and controversial one. Statutory rape is said to occur when an underage person or minor engages in sexual intercourse. Under California law, a minor cannot legally give consent to have sex. So, when they engage in such activity, the law views it as “statutory rape.” The question then arises: How does the law work when two minors engage in sexual intercourse.

How Does Consent Work?

Rape is often associated with sex where one of the parties has been forced to engage in sexual intercourse without offering consent. However, in statutory rape cases, the “victim” is typically a willing participant. However, the reason such activity is considered criminal is California law does not give minors the legal authority to give consent to sex. Legislators consider minors to be incapable of comprehending the importance of having sex or making that judgment call. This is why the law does not allow them to make that decision until they become adults, or turn 18.

What the Law Says

California Penal Code Section 261.5 states that it is a crime for any individual to have sexual intercourse with another who is under 18 and who is not the spouse of the defendant. So, this includes instances where both persons involved in the sexual intercourse are under the age of 18 as well as cases where one is a minor and the other, an adult.

That said, if both parties are under the age of 18, it is not common for either to face statutory rape charges. This is because it can be extremely challenging to determine who should be considered the victim and who, the perpetrator. In such cases, it is highly unlikely that prosecutors will decide to file charges. Instead, they may simply receive counseling about the dangers of sex before adulthood. However, if one person is 18 and has sex with a girlfriend or boyfriend who is underage, he or she might be charged with statutory rape.

What Are the Penalties?

Statutory rape could be charged as misdemeanors or felonies depending on the circumstances of the case. The penalties could vary from case to case as well. Typically if an individual is convicted of statutory rape, he or she might face up to a year in jail. An 18-year-old who has sex with a 17-year-old might face misdemeanor charges.

If the defendant is under 21 and the alleged victim is 16 or older, a felony charge may be filed. Defendants could face up to three years in county jail and fines of up to $10,000. If the defendant is over 21 years of age and the victim under 16, he or she could face up to four years in state prison.

A statutory rape conviction may not automatically mandate registration as a sex offender. Typically, the judge will decide whether you need to register or not. Once again, this will depend heavily on the facts and circumstances of your case.

A statutory rape charge is serious whether you are charged with a misdemeanor or a felony. If you are facing these charges, contact an experienced Orange County sex crime defense lawyer who will help protect you from potentially serious repercussions.

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