§ 261.5 PC - Statutory Rape - California Law & Penalties

LEGAL ANALYSIS -- Arrested for sex with a minor? Advice from a former D.A.

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Penal Code § 261.5 PC makes it statutory rape to have sexual intercourse with anyone not your spouse who is under 18 years old (California’s age of consent). It does not matter if the minor willingly participates or initiates because they are legally incapable of consenting to sex.

This chart illustrates the penalties, which vary based on your age and the age of the other person:

PC 261.5	Maximum Criminal Penalties
You are no more than 3 years older than the minor	Misdemeanor: 1 year in jail and/or $1,000
You are more than 3 years older than the minor	Misdemeanor: 1 year in jail and/or $1,000 or Felony: 16 months, 2 years, or 3 years in jail and $10,000
You are at least 21, and the minor is under 16	Misdemeanor: 1 year in jail and/or $1,000 or Felony: 2, 3, or 4 years in jail and $10,000

Below, our California criminal defense lawyers will address the following topis re. statutory rape:

A young adult male who risks committing statutory rape if he has sex with a younger girlfriend.

Penal Code 261.5 PC is California’s statutory rape law.

1. Elements

California Criminal Jury Instruction “CALCRIM” 1072 spells out the elements for statutory rape. For you to be convicted of violating PC 261.5, prosecutors must prove beyond a reasonable doubt the following three elements of the crime. :

You had sexual intercourse with another person (any amount of sexual penetration, regardless of how slight, constitutes sexual intercourse even if there is no ejaculation),
You and the alleged victim were not married to each other at the time, and
The alleged victim was under 18 years old at the time of the offense.

There is no requirement for the prosecutor to prove that force was used to accomplish the sexual intercourse or that the alleged victim did not consent to the intercourse. This is different from ordinary rape under California law, in which the victim’s lack of consent to intercourse is the key element of the crime.

Therefore, many of the PC 261.5 cases we see arise out of an otherwise caring and loving relationship involving a mature teenager. It is simply the age of the parties that is relevant to whether charges get filed.¹

How Age is Determined

Under California law, a person is deemed to be one year older at 12:01 am (one minute after midnight) on their birthday.²

Example: Cory is 19. His girlfriend Brianna is 17. Cory knows people who have served jail time for violating PC 261.5 and is very concerned about this threat. So he and Brianna plan on waiting until she is 18 before they have sex.

Brianna’s birthday is on February 2. On the night of February 1, she and Cory stay up late. Just after midnight—after the date has changed to February 2-they have sexual intercourse for the first time. Cory did not commit the offense because Brianna is now considered to be 18.

Minors Can Be Charged in Statutory Rape Cases

If both you and your partner are under 18 when you have sex, you both can be charged with statutory rape! This may seem a little crazy since in a case like this you are technically also a “victim.”

In our experience, many prosecutors in California do not make it a priority to prosecute teenagers for having sex with other teenagers. Though that does not mean it cannot happen.³

A case where you are also a minor will probably be tried in the California juvenile court system.

2. Penalties

As a wobbler, statutory rape may be a misdemeanor or a felony, depending on these circumstances:

If you are no more than 3 years older than the alleged victim, violating PC 261.5 is always a misdemeanor.
If you are more than 3 years older than the alleged victim, violating PC 261.5 may be charged as either a misdemeanor or a felony.
If you are 21 or older – and the alleged victim is under 16 at the time the intercourse occurs – violating PC 261.5 may be charged as either a misdemeanor or a felony.⁴

If #2 or #3 in the above list applies, the District Attorney decides whether to bring misdemeanor or felony charges by taking into account your criminal history and the facts of the case.

Misdemeanor Penalties

If you are charged with misdemeanor statutory rape under any of the circumstances above, the potential penalties include:

Informal (otherwise known as misdemeanor or summary) probation,
A maximum 1-year county jail sentence, and/or
Up to $1,000 in fines.⁵

Felony Penalties

Penalties for felony statutory rape include:

Probation (either informal or formal felony probation) with up to 1 year in county jail, OR
16 months, 2 years or 3 years in custody UNLESS you were 21 or older and the “victim” was under 16, in which case the potential sentence is 2 years, 3 years or 4 years, and
Up to $10,000 in fines.

In some cases, the judge lets you serve a “split sentence” where part of your time is done through house arrest or work release. If you get probation, the judge will usually impose a suspended sentence where you do no jail if you comply with your probationary terms.

Note that statutory rape is not a “strike offense” under California’s Three Strikes Law. Though it is a felony, a PC 261.5 conviction would strip you of firearm rights for life.

Finally, statutory rape can be a crime involving moral turpitude depending on the age of the minor; therefore, non-citizens risk deportation.⁶

Man behind bars serving time for violating PC 261.5.

PC 261.5 sentences are in county jail, not state prison. Good behavior can halve the sentence.

Civil Penalties for Statutory Rape

In addition to the above punishment, you may also face civil penalties (non-criminal fines) if you are 18 or older. The maximum penalties are:

$2,000 if the minor is less than two years younger than you,
$5,000 if the minor is at least two years younger than you,
$10,000 if the minor is at least three years younger than you, and
$25,000 if the minor was under 16, and you were over 21.⁷

3. Common Defenses

Here at Shouse Law Group, we have represented literally thousands of people facing charges for PC 261.5 and related sex crimes. In our experience, the following three defenses are very effective with prosecutors, judges, and juries.

You Honestly and Reasonably Believed that the Alleged Victim Was 18 or Older.

If you genuinely believed that the alleged victim was at least the minimum age of consent (18 years old) at the time you had sex, you cannot be convicted of violating this section.⁸

This “mistake of age” defense is a more specific version of the general legal defense of mistake of fact. We find this defense useful in situations where minors lie about their age online.

Evidence we typically rely on to support this defense are:

Statements made by the alleged victim that they were over the age of 18,
Their attire and general appearance, and
Where you met the alleged victim (at an adult party or venue, for example).

Example: Todd meets Jessica at a bar that requires patrons to present ID showing that they are 21 or older before entering. While he and Jessica are talking, he sees her order a drink at the bar, presenting a driver’s license that says she is 21. Todd and Jessica eventually go home to Todd’s apartment and have sex.

It turns out that Jessica is actually 16 and was using a fake ID to get into the bar and buy drinks. But because Todd honestly and reasonably believed the age on her fake driver’s license was accurate, he is not liable for committing statutory rape.

Therefore when we have a client who met a minor at an adult-only venue such as a bar, we argue to the court that our client was reasonable to believe that they were over 18.

No Sexual Intercourse Occurred

Unless the D.A. can prove beyond a reasonable doubt there was some penetration of a vagina by a penis, then no statutory rape occurred.

Note that if prosecutors fail to prove statutory rape, they may try to bring other sex charges depending on the case such as:

You Are the Victim of False Accusations

Much like any other California sex crime, statutory rape is an offense that is ripe for false accusations. These charges are often initiated out of anger, jealousy, revenge, or sometimes even by the minor’s parent who is unhappy with you.

As well-known Santa Ana criminal defense lawyer John Murray⁹ explains,

“If you are arrested for committing PC 261.5, remain silent. Don’t try to explain your side of it to the cops or talk your way out of it. Let me handle it; that’s what I’m here for. A conviction can have significant consequences, which is why I will conduct a thorough investigation to help prove your side of the story and your innocence.”

In order to impeach the credibility of your accuser, we comb through their recorded communications (texts, voicemails, etc.) in search of prior inconsistent statements and motivations to lie. Once we present this evidence to the prosecutor, they may realize your charges are baseless and drop them.

Police officer interrogating man in hoodie

Another defense to PC 261.5 charges is police misconduct (illegal searches or coerced confessions).

Unlike with Rape, Consent is NOT a Defense.

A common defense to rape (PC 261) charges is that the alleged victim consented to the sex. With statutory rape, consent is not a defense because minors are not legally able to give consent.¹⁰

4. Sex Offender Registration

A statutory rape conviction does not require you to register as a sex offender in California. The only exception is if the judge finds that the statutory rape was due to an uncontrolled sexual compulsion (which is very rare).¹¹

In some cases, the judge may require you to register as a sex offender as a condition of probation – but you can stop once probation ends (usually 3 to 5 years).

5. Related Offenses

Lewd or Lascivious Acts with a Child (Penal Code 288 PC)

Lewd acts with a child (Penal Code 288 PC) is touching a child under 15 (or under 16 in some circumstances) somewhere on their body for purposes of sexual gratification.

Unlike PC 261.5, most lewd acts with a minor (also known as child molestation) are felonies, carrying up to 8 years in California state prison. In addition, lewd acts with a minor requires sex offender registration.¹²

Rape (Penal Code 261 PC)

Rape (Penal Code 261 PC) is having sexual intercourse with another person without their consent accomplished by means of threats, force or fraud. This is in contrast to statutory rape, where the question of whether the alleged victim consented is irrelevant.

Rape is always a felony, punishable by up to 8 years in the state prison. It is also a “strike” under California’s three-strikes law. In most cases, it also requires lifetime registration as a three-tier sex offender.¹³

6. Exceptions to Statutory Rape Law

The only time you can lawfully have sex with a minor is if you and the minor were married at the time of the sexual intercourse.

Unlike other states, California law does not recognize a “Romeo & Juliet exemption” which permits teenagers close in age to have sexual intercourse lawfully.¹⁴

7. Statute of Limitations

In California, the criminal statute of limitations for PC 261.5 violations is:

1 year for a misdemeanor charge and
3 years for a felony charge.

The fact that the “victim” in these cases is a minor does not toll the statute of limitations.

8. Victim Lawsuits

People who believe they have suffered damages as the result of statutory rape have the right to bring a sexual assault lawsuit in California. You do not need to have been convicted in a criminal trial to be sued.

The burden of proof in a civil case is simply a preponderance of the evidence. If nine of the 12 jurors believe it is more likely than not that you did something wrong, you can be ordered to pay damages – even if

You were found “not guilty” in a criminal jury trial or
Charges were never filed.

Damages that can be recovered from you include compensatory damages such as:

For more information, please see our article on Lawsuits by Crime Victims in California.

Additional Reading

For more information, see our related articles:

If you are suffering from sexual compulsions or disorders, you can find resources at the Association for the Treatment of Sexual Abusers (ATSA).

Legal References:

California Penal Code 261.5 PC — Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties.

(a) 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. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(e) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:

(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).

(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).

(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).

(D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).

(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.

(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.

CALCRIM 1072 (“To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant had sexual intercourse with another person; 2 The defendant 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 . . . .”). See also People v. Karsai (1982) 131 Cal.App.3d 224. People v. Jones (1988) 46 Cal.3d 585. People v. Sheffield (1908) 9 Cal.App. 130 (“It is unnecessary to allege that the female had never been married to anyone before the commission of the act. It is sufficient to aver and prove that she was under the age of consent and not at the time the wife of the one having sexual intercourse with her. The offense is complete under the statute, even though the female may have been at the time the wife of another.”). People v. Kemp (1934) 139 Cal.App. 48. See also CALCRIM 1070 – Unlawful Sexual Intercourse: Defendant 21 or Older. See also CALCRIM 1071 – Unlawful Sexual Intercourse: Minor More Than Three Years Younger.
CALCRIM 1072 — Misdemeanor Statutory Rape. “[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]”
In re T.A.J. (1998) 62 Cal.App.4th 1350, 1352-53. (“Penal Code section 261.5, subdivision (b), makes it a misdemeanor for “any person” to have sexual intercourse with a minor who is no more than three years older or younger than the perpetrator. Does this statute infringe a constitutional privacy right of minors to engage in consensual sexual intercourse? Is the statute unconstitutional as applied to appellant who was a minor himself at the time of the alleged offense, and therefore, an individual within the class of persons protected by the statute? In affirming the finding of the trial court determining appellant to be a ward of the court, we answer both questions in the negative.”). See Amy Benfer, Kiss & Tell, Legal Affairs, Sept-Oct 2002.
California Penal Code 261.5 PC — California statutory rape law. (“(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”). See also AB 1371 (2023) (re. community service).
California Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”) This is why an individual convicted of California Penal Code 261.5 statutory rape as a misdemeanor faces a maximum $1,000 fine.
California Penal Code 261.5 PC — California statutory rape law, subsection (c). See also California Penal Code 1170(h) – Determinate sentencing. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”). See same, California statutory rape law, subsection (d). California Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”) This is why an individual convicted of California Penal Code 261.5 statutory rape as a felony faces a maximum $10,000 fine. Matter of Pedro Josue Jimenez-Cedillo 27 I&N Dec. 782 (BIA 2020).
California Penal Code 261.5 PC — California statutory rape law. (“(e)(1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts: (A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000). (B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000). (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000). (D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).”).
CALCRIM 1072 — Misdemeanor Statutory Rape. (“[The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.]”). See In re Harris (1993) 5 Cal.4th 813. People v. Hernandez (1964) 61 Cal.2d 529. People v. Winters (1966) 242 Cal.App.2d 711. People v. Zeihm (1974) 40 Cal.App.3d 1085. People v. Freeman (1988) 46 Cal.3d 419.
Santa Ana criminal defense lawyer John Murray represents clients in criminal proceedings in all locations of the courts of Los Angeles County and Orange County.
CALCRIM 1000 – Rape . . . by Force, Fear, or Threats. (“To prove that the defendant is guilty of this crime, the People must prove that: . . . 3 The woman did not consent to the intercourse; . . . .”). CALCRIM 1072 – Misdemeanor Statutory Rape. (“[It is not a defense that the other person may have consented to the intercourse.]”)
California Penal Code 290 PC — Sex Offender Registration Act. (“(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 287, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 287, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261 [California rape statute]…”) Penal Code 261.5 PC, California’s statutory rape law, is not on this list. California Penal Code 290.006 PC.
California Penal Code 288 PC – Lewd or lascivious acts; penalties; psychological harm to the victim [may be charged instead of or along with California statutory rape]. California Penal Code 290 PC — Sex Offender Registration Act.
See Penal Code 261 PC — Rape defined. Compare to Penal Code 261.5 PC, California’s statutory rape law, which does not require lack of consent as an element. California Penal Code 264 PC – Rape, punishment. See also Penal Code 12022.7 PC – Great bodily injury. California Penal Code 667.5 PC. (“(c) For the purpose of this section, “violent felony” shall mean any of the following . . . (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.”). California Penal Code 290 — Sex Offender Registration Act. California statutory rape is not one of the crimes requiring registration, but Penal Code 261 PC rape is. See also People v. Nicholson (1979) 98 Cal.App.3d 617. People v. Bobb (1989) 207 Cal.App.3d 88. In re T.A.J. (1998) 62 Cal.App.4th 1350. In re Meagan R. (1996) 42 Cal.App.4th 17.
See note 1.

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§ 261.5 PC – Statutory Rape – California Law & Penalties