Under California Penal Code (PC) 261, you could be arrested and charged with rape if you have sexual intercourse with someone without their consent. Rape is categorized into different types based on the situation. Statutory rape is one type and applies to individuals who have sexual intercourse with minors. Since children cannot legally agree to engage in sexual activities, engaging in such acts with them can lead to a statutory rape charge.
Even though both statutory rape and rape involve illegal sexual intercourse, they are different in their definitions, elements, and the penalties they carry if convicted. If you face charges under PC 261 or 261.5, you will need a skilled attorney to help you defend against the charges and avoid severe consequences. This blog explains the differences between rape and statutory rape in California.
What is Rape?
Rape under California PC 261 is defined as having sexual intercourse with someone without their consent in various situations. These situations include cases where there is no consent, where force or fear is used, or where the person is unable to give consent because they are incapacitated.
Rape also occurs if you engage in sexual intercourse by:
- Threatening to harm the person or someone else if they do not agree, such as through physical violence (PC 261(a)(6))
- Pretending to be someone else, and the person believes your deception (PC 261(a)(5))
- Threatening the person with arrest, imprisonment, or deportation, and the person believes you are an official who can make this happen (PC 261(a)(7))
In summary, it is just as illegal to commit sexual assault through threats, coercion, deceit, or manipulation as it is through physical force. The law takes psychological pressure as seriously as physical force.
A crucial element of rape under California PC 261 is that the victim did not consent to engage in sexual intercourse. Consent must be:
- Given freely
- Given voluntarily
- Based on an understanding of what is happening
Certain individuals cannot legally consent to sex, no matter what they say or do. These individuals include:
- People who are highly intoxicated
- People with serious mental issues
- People who are unconscious or asleep
Judges consider the details of each case to decide whether consent was present. It is unnecessary for the person to physically resist or fight back to show that they did not consent.
An Overview of Statutory Rape Under California Law
Statutory rape, also called “unlawful sexual intercourse,” is determined by the ages of the individuals involved rather than how consent was obtained. Statutory rape happens when an adult has sexual intercourse with a minor, which is illegal because minors cannot legally give consent to engage in sexual intercourse in California.
To convict someone of statutory rape under California Penal Code (PC) 261.5, the prosecutor must show three things:
- You had sexual intercourse with another person (any level of sexual penetration, even if there is no ejaculation, counts as sexual intercourse).
- You and the other person were not married at the time.
- The other person was under 18 years old when the incident occurred.
The prosecutor does not need to show that force was used or that the minor did not agree to the sexual intercourse. This is different from regular rape cases in California, where proving that the victim did not consent is the main element of the case.
As a result, many cases under PC 261.5 involve situations where the adult and the minor may have a caring or loving relationship. In these cases, the essential factor is the age of the individuals, which determines whether charges are filed.
Elements of California PC 261 Versus PC 261.5
Rape and statutory rape have different definitions and, therefore, different elements that must be proven for a conviction. If you are charged with rape, the prosecutor must prove these elements beyond a reasonable doubt:
You Engaged In Non-Consensual Sexual Intercourse With Another Person
Rape and statutory rape both involve sexual penetration. However, the key difference for Penal Code 261 is that sexual intercourse among adults must be non-consensual. Consent is only valid if the person is of legal age and agrees to the act freely and voluntarily. Additionally, the person must understand what is happening to give valid consent.
You need to know that people who consent can change their minds at any time, even during the act. If you do not respect their withdrawal of consent, you can still be charged with rape.
A sexual act is considered without permission under these conditions:
- The alleged victim did not give consent verbally or through their actions. There is no need for physical struggle to show a lack of consent
- A reasonable person would have understood that the acts or words indicated a lack of consent
- The defendant continued the act despite the victim’s objections
If someone does not resist your sexual advances due to physical or mental impairment, you can still be charged under PC 261 for breaking the law.
You Accomplished the Sexual Acts Using Force, Fear, Menace, Violence, or Fraud
How the sexual act is carried out sets PC 261 apart from other rape laws. To convict you under this statute, the prosecutor must show that you used force, fear, intimidation, violence, or deceit to carry out the act.
- Force—Using force means applying physical strength to go against the victim’s wishes
- Violence—Committing a sexual act through violence means engaging in actions that are meant to cause harm or death to the victim.
- Fear/threats—Using fear means threatening to harm the victim, which makes them feel unsafe.
- Fraud—This involves deceiving someone to achieve the act. For example, lying about a fact to influence someone’s decision is considered fraud.
- Retribution—This involves forcing someone to participate in an act by making them fear retaliation
If you are charged with statutory rape under PC 261.5, these elements must be proven to establish your guilt:
You Engaged in Sexual Relations with a Minor
To prove guilt for statutory rape, the prosecutor must show that you had sexual penetration with someone under eighteen (18) years old. In California, a minor refers to any individual who has not yet reached 18. Minors cannot legally agree to have sex under any conditions. Because of this, the prosecutor does not need to prove that you used force, fear, violence, or fraud. The key point is the age of the victim. This is a statutory offense, so intent does not matter.
Statutory rape differs from regular rape, mainly in the issue of consent. Regular rape focuses on the lack of consent, while statutory rape is concerned with the age of the victim. Even if you are a minor yourself, you can still face statutory rape charges if you engage in sexual activity with someone below 18 years. Charges under Penal Code 261.5 are based on the minor's age, and there are different categories of offenses and penalties depending on the minor’s age.
Classification of the Crime
California PC 261 covers different types of rape, with charges based on the nature and seriousness of the act. There are several types of rape, including:
1. Date Rape
Date rape happens when someone has non-consensual sexual intercourse with a person they know. This can involve anything from a first date to a long-term relationship. Even though date rape may seem less formal, it is still a serious crime under PC 261 and can result in harsh penalties.
2. Marital Rape
Consent is required for sex, even within marriage. Marital rape happens when one spouse forces, threatens or uses violence to have sex with the other spouse without their consent.
Statutory rape charges are based on the age of the victim. In California, a person becomes a year older at midnight on their birthday. You can face statutory rape charges if you engage in sexual activity with an underage.
Nature of the Criminal Charges
Under California PC 261, rape is always treated as a felony. Statutory rape is classified as a “wobbler offense,” which means it can be charged either as a felony or a misdemeanor. How statutory rape charges are handled can vary based on several factors, including your criminal history. If you have previous convictions for rape or other sex crimes, the prosecutor may decide to file felony charges.
The age difference between them also plays a role in determining the charges:
- If the age difference between you and the victim is less than three years, you will likely face misdemeanor charges unless there was force, violence, or injury involved.
- If the age difference is over three years, you might face either misdemeanor or felony charges, depending on the circumstances and whether there were aggravating factors like force, violence, or injury.
- If you are over twenty-one and the victim is younger than sixteen, you will be charged with a felony.
California does not have a “Romeo and Juliet” law that permits sexual activity between close-in-age minors. In California, any sexual intercourse with a minor will lead to criminal charges. However, a smaller age difference might reduce the severity of the charges.
Sentencing in Rape Cases
Rape is a felony in California, and typical penalties include 3, 6, or 8 years in prison and lifetime registration as a sex offender. Penalties are more severe if the victim is under 18 years old. Additionally, if the victim suffered serious bodily injury, the court may add 3 or 5 extra years to the prison sentence.
A sexual assault conviction counts as a “strike” under California’s Three Strikes Law. This means if you are convicted of another serious felony later, your sentence will be doubled. If you are convicted of a third serious felony, you could face a life sentence in prison.
A Minor Victim
If the victim of a sexual assault is under 13 years old, the prison sentence is 13 years. If the victim is between 14 and 17 years old, the prison sentence is 11 years. It does not matter if you mistakenly believed the victim was older or if they lied about their age.
Probation for Sexual Assault Convictions
In California, probation is generally not an option for sexual assault convictions if:
- You used force or violence during the assault.
- The victim suffered significant bodily injury.
Other Legal Consequences of Rape
Rape is considered a crime involving moral turpitude (CIMT). Non-citizens who are convicted of rape will face deportation after serving their prison sentence. Additionally, foreigners with rape convictions will be deemed inadmissible and will not be allowed to enter the United States.
As rape is classified as a felony in California, a conviction results in the permanent loss of the right to own, buy, or possess firearms. You may be able to have your gun rights restored through a governor’s pardon.
Penalties for Statutory Rape
Statutory rape is classified as a “wobbler,” meaning it can be charged as either a felony or a misdemeanor, based on the following factors:
- If you are not more than three years older than the victim, a violation of Penal Code 261.5 is charged as a misdemeanor
- If you are three years or older than the victim, the violation will be charged as a wobbler offense
- If you are twenty-one years or older and the victim is below 16 when the sexual activity occurs, the violation can be charged as a wobbler offense
The prosecutor will decide whether to pursue felony or misdemeanor charges based on your criminal background and the details of your charges.
Misdemeanor Penalties
If you have been charged with statutory rape as a misdemeanor, possible penalties include:
- Summary probation (also known as informal probation)
- Up to 1 year in county jail
- Fines up to a thousand dollars
Felony Penalties
If you are charged with felony statutory rape, the penalties can be:
- Probation (either formal or informal) with a maximum of a year in county jail
- Sixteen months, two years, or three years in prison. If you are 21 years or older and the alleged victim is under 16, the possible prison term is two, three, or four years.
- Fines amounting to $10,000
Sometimes, a judge might allow a “split sentence,” whereby a part of the term is served under work release or house arrest. If you are sentenced to probation, the presiding judge may suspend the jail time if you follow the probation conditions.
Statutory rape under California's Three Strikes Law is not counted as a “strike offense”. However, a felony conviction for statutory rape will permanently revoke your right to own firearms.
Additionally, statutory rape could be charged as a crime that involves moral turpitude based on the victim’s age. Foreign citizens convicted of this crime risk deportation.
Legal Defenses Against Rape and Statutory Rape Charges
Rape and statutory rape are serious crimes with severe penalties. Therefore, having a solid defense plan to challenge these allegations is necessary. In a rape case, one critical defense is to argue that the victim agreed to the sexual act. You might avoid a conviction if you show that the alleged victim understood what was happening and willingly took part. Proving consent can be challenging since most sexual misconduct cases lack witnesses.
Such cases often come down to a matter of conflicting accounts. Even with scientific evidence like DNA or physical injuries, other evidence can be crucial in proving that the victim consented. These include the following:
- Cell phone records
- Social media posts
- Inconsistencies in statements given to friends, family, or the police
The case involves piecing together the full story from all available evidence to show what happened. However, consent cannot be used as a defense in statutory rape cases. You can be convicted of statutory rape even if the victim agreed to the sexual activity because minors cannot legally consent to sex.
The only way to avoid a conviction for statutory rape is to prove that the alleged victim was not a minor at the time of the incident or that the sexual act did not happen. An experienced criminal defense lawyer is crucial for creating a solid defense strategy against rape charges.
Contact an LA Criminal Defense Law Firm Near Me
California regards any case of rape or statutory rape as a serious offense. If you engage in non-consensual sexual intercourse under PC 261 or any sexual activity with a minor under PC 261.5, you could face rape and statutory rape charges under California law, respectively.
Being convicted of rape or statutory rape can have lasting consequences far beyond prison time and fines. It leaves you with a permanent criminal record that is challenging to expunge. Understanding the differences between PC 261 and PC 261.5 is crucial for building a solid defense. If you are facing these charges, you should seek legal counsel.
At the Law Offices of Jonathan Franklin, we offer expert advice and build solid defense strategies for clients dealing with sex crime charges in Los Angeles. Call us now at 310-273-9600 to speak with one of our Los Angeles attorneys.
