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Unlawful Sexual Intercourse Charges in California
- Penal Code §261.5 -
Unlawful Sex with A Minor - PC 261.5
California Penal Code section 261.5 makes it a crime for any person to have sexual intercourse with minor, even if the sex is consensual. This crime is often referred to as statutory rape or unlawful sextual intercourse.
A criminal charge for violating penal code section 261.5 should never be taken lightly. As you will see, the consequences for engaging in sexual intercourse with a minor are very serious.
The following information is intended to provide a general understanding of the crime of unlawful sexual intercourse in California.
It is always recommended that someone charged with violating penal code section 261.5 contact an experienced criminal defense lawyer at JPLaw, P.C. as soon as possible.
CRIMINAL DEFENSE
1. What is considered unlawful sexual intercourse under PC 261.5?
Unlawful sexual intercourse is sexual intercourse with any person who is not yet 18 years old. However, it is not unlawful sexual intercourse if the parties were married at the time of intercourse.
The law defines sexual intercourse as any penetration of the vagina or genitalia by the penis, no matter how slight the penetration. As previously mentioned, it is not a defense that the minor may have consented to engage in sexual intercourse.
California law makes minors legally incapable of consenting to sexual intercourse. A person is only legally capable of consenting to sex once the first minute of the person’s 18th birthday has begun.
Penal Code §261.5 States:
(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.
(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.
(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.
(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.
2. What are the elements of PC 261.5?
Before anyone can be convicted of a crime in California, the prosecutor must prove all of the essential components of the crime. The essential components of a crime are called the “elements” of the crime.
In order to find someone guilty of unlawful sexual intercourse for violating penal code section 261.5 the prosecutor must prove the following elements beyond a reasonable doubt:
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The perpetrator had sexual intercourse with another person;
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The perpetrator was not married to the other person at the time of the sexual intercourse; AND
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At the time of the intercourse, the other person was not yet 18 years old.
PC 261.5 does not prohibit sexual intercourse if the parties are married.
3. What if both parties where minors?
Although it may be a mitigating factor, it is not a defense to penal code section 261.5 that both parties were minors at the time of intercourse.
As previously mentioned, California law prohibits any person from engaging in sex with a minor, including other minors. Whenever two minors engage in sexual intercourse, they can both be charged with unlawful sexual intercourse.
Example: Chip and Mary have been in a relationship for 2-years. Chip is 16-years old and Mary is 17-years old. If Chip and Mary engage in sexual intercourse, then both could be charged with unlawful sexual intercourse.
Chip could be charged with violating penal code section 261.5 for having sex with Mary. And Mary could be charged with violating penal code section 261.5 for having sex with Chip.
4. What are the penalties for unlawful sex with a minor?
The penalties for violating penal code section 261.5 depend on the age difference between the two individuals and the severity of the charge.
If the alleged victim is not more than 3 years younger than the alleged perpetrator, then unlawful sexual intercourse is a misdemeanor offense. A misdemeanor is a middle-tier crime in California.
Any person who engages in sexual intercourse with a minor who is more than 3 years younger than the perpetrator may be guilty of either a misdemeanor or a felony. A felony is more serious and includes harsher penalties than a misdemeanor.
The prosecutor – either the district attorney or a city attorney in Orange County – is responsible for choosing whether to file the charge as a misdemeanor or a felony.
Penalties for Unlawful Sexual Intercourse (Misdemeanor) –
The maximum penalty for engaging in sex with a minor in violation of penal code section 261.5 where the charge has been filed as a misdemeanor is:
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Imprisonment in the county jail for up to 1-year;
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A fine of up to $1,000; OR
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Both that fine and imprisonment.
Penalties for Unlawful Sexual Intercourse (Felony) –
The maximum penalty for engaging in sex with a minor in violation of penal code section 261.5 where the charge has been filed as a felony is:
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Imprisonment in the state prison for 16 months, 2 years, or 3 years;
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A fine of up to $10,000; OR
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Both that fine and imprisonment.
IMPORTANT: If the perpetrator is 21 years old or older and the victim is not yet 16 years old at the time of intercourse, then the perpetrator may face up to 4-years in the state prison.
Probation for Unlawful Sexual Intercourse –
A defendant convicted of unlawful sexual intercourse for having sex with a minor may be granted probation. Probation is a form of conditional supervision that the court may grant as a form of leniency.
A defendant is expected to comply with all of the terms of probation. Failure to comply with the terms of probation can result in the revocation of probation and the defendant being sentenced up to the maximum penalties, listed above.
Probation can either be formal or informal. A defendant on formal probation is monitored by the county probation department, while a defendant on informal probation will report directly to the court.
Formal probation is normally reserved for defendant’s convicted of felony violations. Informal probation, sometimes referred to as summary probation or misdemeanor probation is normally for defendants convicted of misdemeanor crimes. However, a court may still grant formal probation to a defendant that was convicted of a misdemeanor if it so chooses.
A judge can also order that the defendant be imprisoned in jail as a condition of the defendant's probation.
5. Will I have to register as a sex offender if convicted of PC 261.5?
No. Currently, California law does not require sex offender registration for persons convicted of engaging in unlawful sexual intercourse.
Although penal code section 261.5 is sexual in nature, a conviction for violating the section does not require the defendant to register as a sex offender pursuant to penal code section 290.
6. What are some common defenses to charges for having unlawful sex with a minor?
There are many defenses a good criminal lawyer can use to defend some accused of unlawful sexual intercourse with a minor.
Mistake of Age –
Although consent is not a defense to unlawful sexual intercourse, penal code section 261.5 still requires some form of criminal intent. A person is not guilty of penal code section 261.5 for having sex with a minor if the person reasonably believed that the minor was at least 18 years old.
Mistake of age requires two things: (1) that the defendant actually believe that the minor was at least 18 years old and (2) that the defendant was reasonable in having that belief.
Thus, this defense is unavailable to someone who actually knows that the victim was a minor, even if someone else may reasonably believe that the victim was at least 18 years old.
Moreover, this defense is unavailable if the defendant unreasonably thought the victim was at least 18 years of age. For example, it may be unreasonable to think someone is 18 years old if you know that the person is a freshman in high school because normally freshmen in high school are between 14 years old and 15 years old.
False Accusations –
Unfortunately, it is not uncommon for people to make a false accusation that someone had sexual intercourse with a minor, especially after a bitter breakup or when a minor is confronted by a parent or guardian.
The most important thing to do in this kind of situation is to remain silent. You should NEVER try and explain your side of the story to a law enforcement officer. Prosecutors will try and use anything and everything you say against you in court.
It is important to remember that every situation is different. If you or someone you love has been charged with violating PC 261.5 for allegedly having unlawful sexual intercourse with a minor, it is imperative that you contact an experienced and knowledgeable criminal defense lawyer at JPLaw, P.C. as soon as possible.
Contact An Orange County Criminal Defense Lawyer
John-Patrick Mullen-Lujan is a trusted Orange County criminal defense lawyer that prides himself on his ability to communicate with clients as he helps them navigate our complex criminal justice system.
Attorney Mullen-Lujan was named one of the Best Criminal Defense Lawyers in Orange and Newport Beach. Hire an attorney you can trust and who can provide the zealous advocacy you need.
Contact JPLaw, P.C. to schedule your FREE consultation with local Orange County criminal defense lawyer John-Patrick Mullen-Lujan. Together you will review your case and develop a legal defense strategy tailored just for you!
JPLaw, P.C.
Orange County Law Office
Old Town Orange Office
410 N Clark St.
Orange, CA 92868
Phone: (949) 991-7057
Email: JPLAW22@outlook.com