Archives : statutory rape

Statutory Rape Sorting Out the California Unlawful Sexual Intercourse Law

By Vince Imhoff, Esq., and Dan Rhoads

Age Aint Nothing but a Number: The title of Aaliyahs first album was a not-so-subtle justification of her relationship with R. Kelly. When she was 15 and he was 25, the two were married secretly; but her parents annulled the marriage when they found out about it. Years later, R. Kelly was arrested when a videotape that allegedly featured a sexual encounter between him and a young teenage girl surfaced. This arrest came after Kelly settled a suit with a woman who claimed that Kelly impregnated her when she was 16.

Like R. Kelly, Roman Polanski has enjoyed celebrity long after being charged for statutory rape. Polanksi plied a 13-year-old girl with alcohol and Quaaludes before having sex with her at Jack Nicholsons house. Out on bail, Polanski fled to France and has never returned to the United States to face his sentence.

Statutory Rape Penal Code, Section 261.5(a)

Because Polanskis victim was under 14, his crime against her was actually lewd or lascivious acts committed with a child. In California statutory rape, or 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. . . . [A] minor is a person under the age of 18 years. Cal. Pen. Code 261.5(a).

Taking the statute literally, whenever unmarried minors consent to sex, they would both be guilty. However, [f]or there to be a violation of [ 261.5], one minor must be denominated a perpetrator and the other a victim. The fact that a minor may be a victim does not ipso facto exclude a minor from being charged as a perpetrator. In re T.A.J., 62 Cal. App. 4th 1350, 1364 (1998).

The question that this reasoning raises is: when both parties are consenting minors, which one is the perpetrator?

Due to the reasons underlying the law of statutory rape, the male is at greater risk to be dubbed the perpetrator. Until 1993, the statutory rape laws singled out women as the victims, making men the de facto perpetrators in all cases of underage heterosexual intercourse.

Like most states, California has made its law gender-neutral. Now, although boys who are alleged victims are not viewed the same way as girls who are victims, explains Mike Sinacore, under the law there is no distinction (CBS News). Sinacore is the prosecutor in the case against Debra Lafave, a 23-year-old schoolteacher in Florida who had sex with a 15-year-old male student.

Crimes and Punishments for Statutory Rape Convictions

Where the perpetrator is no more than 3 years older or younger than the victim, statutory rape is a misdemeanor. Cal. Pen. Code 261.5(b). When the minor is more than 3 years younger than the perpetrator, the offense is a wobbler, which means that it can be charged as either a misdemeanor or a felony.

When the perpetrator is 21 or older and the minor is younger than 16, a misdemeanor charge can be penalized by 1 year in county jail. 261.5(d). A felony charge for such an offense carries a punishment of 2, 3, or 4 years in prison. Id.

In cases where the age difference is more than 3 years, but either the perpetrator is under 21 or the minor is over 16, a felony charge can be punished by either 16 months, 2 years, or 3 years in prison. 261.5(d). If charged as a misdemeanor, the offender faces up to 1 year in jail. Id.

Civil Penalties for Adults Guilty of Statutory Rape

Adults guilty of statutory rape might also face fines and civil penalties.

The civil penalties increase with the difference in age between the perpetrator and the minor. When the perpetrator is an adult and the minor is fewer than 2 years younger, the maximum civil penalty is $2,000. Cal. Pen. Code 261.5(e)(1)(A). Where the difference in age is between 2 and 3 years, the perpetrator may be fined up to $5,000. 261.5(e)(1)(B). If the minor is more than 3 years younger than the adult, the penalty can be as much as $10,000. 261.5(e)(1)(C). The stiffest civil penalty, a $25,000 maximum, is invoked where the perpetrator is over 21 years old and the minor is under 16. 261.5(e)(1)(D).

Statute of Limitations for Misdemeanor Statutory Rape

In the case of misdemeanor statutory rape, the statute of limitations is 1 year from the occurrence. Whenever statutory rape may be charged as a felony, meaning whenever the age difference between the parties is more than 3 years, the statute of limitations is 3 years.

Mistake of Fact

Although statutory rape was historically a strict-liability crime, California now recognizes a defense where the perpetrator participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief. People v. Hernandez, 39 Cal. Rptr. 361, 364 (1964). This acceptance coincided with the raising of the age of consent. Accordingly, the crime of committing lewd or lascivious acts with a child under the age of 14, Cal. Pen. Code 288(a), remains a strict-liability offense.

Conclusion

The purpose of statutory rape laws has historically been to protect young women, who lacked the maturity to consent to sex. Although most states have changed their statutes to make them gender-neutral, males remain at a higher risk for being prosecuted for engaging in teenage peer sex.

Because of the need for bright lines in the law, teenage couples must wait to have sex until each turns 18 to avoid breaking the law. The laws purpose is to protect minors and not to prohibit relationships in which one party is much older than the other.

In California, there is no peer-sex exemption; so, one minor can be prosecuted for having sex with another consenting minor. An adult found guilty of statutory rape faces civil penalties in addition to jail time.

Because of the way the law is set up, the prosecutor has broad discretion in trying statutory rape offenders. The prosecutor can choose not to bring charges where they are not appropriate. In many cases, the state also has the decision of whether to charge the crime as a misdemeanor or a felony. If the prosecutor chooses to take a hard line, a person accused of statutory rape should hire a defense attorney who will be aggressive in protecting the defendants rights.

Statutory Rape: Reporting Myths & Facts

By: Vincent Imhoff, Esq. & Sapana Shah

In efforts to reduce the crisis of teenage pregnancies and epidemic of welfare-dependant fatherless families, the laws governing statutory rape have become exceedingly strict and more aggressively enforced in the last decade. In effect, nearly every state has instituted a broader category of definition and has extended the time to find and punish perpetrators. Despite this expansion of explicit laws proscribing statutory rape, the potential for conviction of a defendant depends on various legal issues: the year of commission, the status of relationship with the child, the role of the accuser in legal proceedings, the evidence used to support the charge, and prior criminal history of the defendant.

Definitions of Statutory Rape

Statutory rape laws define the age below which an individual is legally incapable of consenting to sexual activity; statutory rape laws assume that all activities with individuals below this age are coercive, even if both parties believe their participation is voluntary or consensual. The penal code or criminal code of each state dictates the specific sexual acts that constitute a felony or misdemeanor offense of statutory rape. A common misconception is that the age of consent is the single factor that determines the legality of sexual activity. However, there are only 12 states that have a single age of consent. For instance, in California, statutory rape is defined as: An act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor, a person under the age of 18″ (Penal Code 261.5(a)). New York also, has a single age of consent: If the victim is under 17 and the perpetrator is any age, this constitutes a misdemeanor sexual offense (Article 130, New York Penal Code). In the remaining 39 states, the legal nature of sexual intercourse is determined by age differentials between the child and defendant, the minimum age of the child, and/or the minimum age of the defendant. In Texas, for instance, the age of consent is 17 and the minimum age of child is 14 with an age differential of 3 years; thus, individuals who are at least 14 years of age can legally engage in sexual activities if the defendant is less than 3 years older than the accuser (Texas Penal Code 22.011(a)(2)).

Statute of Limitations

It is often the case with statutory rape cases that memories fade, evidence gets destroyed, and thus defendants may lose the tools to supports their case. Therefore, many states impose a statute of limitations for prosecution in order to ensure that the lawsuits are based on a credible testimony and evidence and to ensure the integrity of the U.S. Justice System. In the last decade, however, the impetus to prosecute statutory rapists has resulted in either the lack of statute of limitations or an extension of the limitations period. For instance, the statute of limitations for California permits prosecution of the crime within six years after its commission (California Penal Code 800), which is 3 years longer than its original time limitation. Additionally, under the DNA Exception rule, California further permits prosecution of statutory rape within one year of the date on which the identity of the suspect is conclusively established by DNA testing or within 10 years of the offense, codified under California Penal Code 803 (2001). For defendants who may currently face a statutory rape lawsuit, it is significant to note that it is possible prosecution may not be permissible if the commission of sexual act occurred before the extended statute of limitations was instituted. As the Supreme Court held in Stogner v. California No. 01-1757 (US Sup. Ct. 06/26/2003):

A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution…Such features produce the kind of retroactivity that the Constitution forbids.

Other Legal Issues Concerning Statutory Rape

Beyond the proscription of statutory rape defined by states definitions and the respective statute of limitations, other legal issues are equally imperative with respect to prosecution. First, most states make exceptions to their statutory rape laws if the adult and child are legally married during the time of commission of sexual conduct. Among many states, California and Texas stipulate this exception in their state penal codes. Secondly, the role of the accuser in legal proceedings and the type of evidence put forth are significant factors that may affect the outcome of the case; if the sexual act is clearly consensual and the child refuses to testify, it is possible that the defendant will stand free of conviction. Moreover, individual jurisdictions in many states prosecute cases based on their own criteria; therefore, while there may be some evidence that confirms the legally age-inappropriate sexual behavior, a combination of factors including the age differential between the child and adult, year of commission, and prior criminal history of the adult may determine the outcome of the case, depending on the state and county. Lastly, because the nature of the sexual act may determine whether it is a felony or misdemeanor offense, cases with insufficient evidence or lack of testimony from the accuser may result in reduced charges.

Conclusions

The unfortunate result of the stringent statutory rape laws is the accusation of suspects made long after the commission of the sexual act, leading to unreliable testimony and unfair prosecutions. Furthermore, retroactive application of current statutes of limitations violates the Ex Post Facto Clause of the Constitution, and thus should eliminate any possibility for prosecution of a crime committed before the implementation of the extended statute. Due to the potential for an unfair trial and the complex legal issues surrounding each statutory rape case, it is imperative that the defendant consults with qualified counsel as soon as possible. The methods in which the defendant can additionally protect his or her self is by exercising the right to remain silent, by not investigating own case, gathering documentation of good character, (such as reference letters, employment history, community service, etc.), and keeping a diary of all significant events and potential witnesses.

Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense law.