Unlawful Sex with a Minor Laws (PC 261.5) in California

I. California Penal Code 261.5 – Unlawful Sex with a Minor

Legal Definition: Having unlawful sexual intercourse is simply an act of sexual intercourse with a person who is not your spouse, if that person is a minor (under 18 years of age).

For a person to be convicted of a violation of PC 261.5(c), the prosecution must prove the following:

1. You had sexual intercourse with another person;
2. You and the other person were not married to each other at the time of the intercourse; AND
3. At the time of the intercourse, the other person was under the age of 18 and more than three years younger than you.

*If you are closer in age, for example, you are 18 and the other person is 17, then you would be guilty of a misdemeanor offense only, under PC 261.5(b)

For a person to be convicted of a violation of PC 261.5(d), the prosecution must prove the following:

1. You had sexual intercourse with another person;
2. You and the other person were not married to each other
   at the time of the intercourse;
3. You were at least 21 years old at the time of the
   intercourse; AND
4. The other person was under the age of 16 years at the
   time of the intercourse.

II. What does this mean?

This is what is commonly referred to as Statutory Rape. It essentially involves you being over the age of 18, and the person you’re having sexual intercourse with being under 18 at the time of the act. The punishments and the types of offenses involved here vary based on your age and the age of the other person.

III. Penalties

If convicted of a violation of PC 261.5(c), you could be sentenced to State Prison for upwards of 16 months, two years, or three years. However, this offense is a wobbler, so you could also only face misdemeanor punishment, where you could instead be sentenced to County Jail for upwards of one year depending on certain aggravating and mitigating factors in your specific situation. You would be required to serve 50% of that sentence.

If you are convicted of PC 261.5(d), you could be sentenced to State Prison for upwards of two years, three years, or four years. This is also a wobbler offense, so there is a possibility that you could only face a misdemeanor sentence of upwards of one year in County Jail with this charge based on certain aggravating and mitigating factors. You would be required to serve 50% of that sentence. This sentence is more severe than the above based on the age difference.

You will not be required to register as a Sex Offender under PC 290 if convicted of an offense here unless a Judge determines you committed the act for the purpose of sexual arousal towards minors. This is why having excellent representation is key to avoiding your name appearing on the Megan’s Law website.

IV. Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Violation of your Rights
4. Reasonable Mistake as to Age
5. False Accusations
6. Coerced Confessions

Using the common defense of a mistaken belief as to the victim’s age is important. Understand that the good faith belief must in fact be reasonable. If it is clear that you are speaking to a 12-year-old child. then you cannot later claim you did not know their age. Further, if age is ever discussed between you and the minor, then know that will come up, and you will be convicted of knowingly engaging in statutory rape with a minor. This offense does happen often on dating sites, where the minor misrepresents their age, and they look close enough to that age that it isn’t something questioned. This is a successful use of defense, as you did, at the time, have a reasonable mistake as to the victim’s age at the time of the act.

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