A statutory rape occurs when a person over 18 years old has sex with someone under the age of 18 and is codified under California Penal Code Section 261.5. The theory behind statutory rape goes something like this; a rape is sex without consent. A person under the age of 18 does not have the capacity to consent to sex. Therefore, it is rape to have sex with someone under the age of 18. If there is less than a 3 year age difference between the two parties, then the accused will be charged with a misdemeanor. Most people in their late teenage years don’t realize that they are committing this crime or realize they are victims of statutory rape.
Effect of Age Difference
If there is greater than a 3 year age difference between the two parties, then the case could be charged as a misdemeanor or a felony. The decision by the prosecutor to file the case as a misdemeanor or a felony will be determine by which prosecutor gets the case, the victim and the victim’s family and the circumstances surrounding the relationship between the two parties. The punishment for this crime can range from probation, no jail time and fines to 16 months, 2 years or 3 years in state prison. While there is no mandatory requirement for sex registration, a judge could find circumstances that would force an individual to register as a sex offender for life.
If the accused is over the age of 21, and the alleged victim in the case is under the age of 16, then the case could be filed as a felony or a misdemeanor. These types of cases tend to be filed as felonies under penal code section 261.5(d). The potential punishments on a case of this nature range from probation, no jail time and fees and fines to 2 years, 3 years or 4 years in state prison.
Unlike a child molest allegation, a mistake as to the age of the victim is a defense to these charges. That is why it is important to retain an experienced attorney in the early stages of a statutory rape allegation. These cases can be defensed, but every step in the process is important to the final resolution whether it be with a judge or district attorney, or in front of a jury. Investigation needs to be done and we need to start speaking to witnesses. The attorneys at Law Office of John D. Barnett are experienced, compassionate and skilled. Contact us today for a free consultation and for piece of mind.