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
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.
Age of Sexual Consent in California
The age of consent in Califonia is
The legal age of consent refers to the age at which a person can legally
consent to engage in sexual intercourse. This age is the same for males
If a person is 18 years of age or older, and he/she has sexual intercourse
with a minor, that person breaks the age of consent law and can be prosecuted
for a crime.
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 California
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
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.
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.
Imhoff & Associates, PC is here to help.
Contact us today!