It can be illegal for two minors to have sex. In some states, having sexual intercourse with someone who is under the age of consent is always treated as statutory rape. In other states, however, there is an exemption to statutory rape for when two people who are close in age have consensual sex.
Statutory Rape
Statutory rape laws make it illegal to have sex with someone who is:
- Under the age of consent,
- Mentally disabled, or
- Physically incapacitated.
These laws forbid all sexual intercourse, even consensual sexual activity, because these groups of people are legally incapable of consenting to sex. Even if they initiate sexual relations, they cannot legally consent to them. Because there is no consent, the sexual conduct is rape.
Age of Consent
Many criminal charges of statutory rape are for sexual acts on alleged victims who are under the age of consent.
The age of consent varies by state. In some states, including California, the age of consent is 18 years of age. In many other states, though, the age of consent is 16 years old. A person is under the age of consent until the moment they come of age. This means that a 15-year-old is underage until the moment they turn 16.
Romeo and Juliet Law
A Romeo and Juliet law is an exemption to a statutory rape charge. Also known as a “close-in-age” exemption, these consent laws apply when the two people who had consensual sexual activity were close in age to each other. Many states have Romeo and Juliet laws, though not all do.
Texas is one of the states where lawmakers have added a Romeo and Juliet exception to their criminal laws. In Texas, consensual sex is generally legal if:
- the actor was not more than three years older than the alleged victim, and
- the alleged victim was 14 years old, or older.1
California, however, is one of the states that does not have a close-in-age exemption.
In California, it is still illegal for minors to have sexual relationships with one another – an 18-year-old in high school can still get arrested and charged for the rape of a child if they have sex with their 17-year-old significant other. If both of them are below the minimum age, they can both be charged with statutory rape.2
The only thing that is different in California is that the penalties for a conviction would not as severe because the age difference between the parties is 3 years or fewer.
Married Minors
Marriage is another common exception to statutory rape allegations. If the young people were married at the time they had sexual intercourse, they generally cannot be liable for statutory rape.
Potential Penalties
In states where a Romeo and Juliet law does not apply, minors who commit statutory rape can face severe repercussions if they are convicted. In some states, a conviction can require the defendant to register as a sex offender.
In California, for example, statutory rape is a “wobbler.” This means law enforcement can charge it as a misdemeanor or a felony.
- If charged as a felony, a conviction carries 2, 3, or 4 years in prison.3
- If charged as a misdemeanor, convictions carry up to 1 year in prison.4
When the age difference between the two minors was less than 3 years, prosecutors have to pursue misdemeanor charges.
However, many of the statutory rape cases where the defendant is a minor are tried in California’s juvenile court system. The penalties in these cases tend to focus on rehabilitation rather than punishment.
California is one of the states where minors convicted for statutory rape do not have to register as a sex offender.5
Additional reading
For more in-depth information, refer to these scholarly articles:
- Romeo & Juliet: Star-Crossed Lovers or Sex Offenders? – Criminal Justice Policy Review.
- “They Aren’t Even Old Enough to Get a Driver’s License”: Variations Among Age of Consent and Romeo and Juliet Laws – Utah State University Student Research Symposium.
- All the Kids Are Doing It: The Unconstitutionally of Enforcing Statutory Rape Laws against Children & Teenagers – New England Law Review.
- Cast Me Not Away: The Plight of Modern Day Romeo and Juliet – Quinnipiac Law Review.
- Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and a Call for Reform – University of Missouri Kansas City Law Review.
Legal References
- Texas Penal Code 22.011(e)(2).
- In re T.A.J. (1998) 62 Cal.App.4th 1350.
- California Penal Code 261.5(d) PC.
- California Penal Code 672 PC.
- California Penal Code 290 PC.
