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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.

Age of Sexual Consent in California

The age of consent in Califonia is 18.

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 and females.

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 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.


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!

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