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.