Statutory Rape and Unlawful Sex with Minors

A person facing allegations of statutory rape needs an experienced trial attorney on his side. The allegations can cause reputational harm, jeopardize a person's career, and carry very serious potential punishments. As a criminal defense lawyer, Richard M. Oberto has the talent, learning, and expertise to provide the best legal representation to those in need.

An allegation of statutory rape requires proof that the complaining witness was a minor at the time of sexual intercourse with an accused person. The law treats minors as incapable of consenting to sex.

Statutory rape requires sexual intercourse as opposed to other types of sexual acts. California law defines sexual intercourse as penetration of the vagina or genitalia by the penis. Crimes involving sodomy, oral copulation, or sexual penetration of minors are punished under separate statutory provisions. Those crimes are punished along some of the same lines as statutory rape, although certain provisions do differ.

Good Faith Belief that a Minor was 18 or older

A person cannot be found guilty of statutory rape if he in good faith believed the minor in question was 18 or older. When the accused person’s belief about age is at issue, the prosecution has the burden of proving beyond a reasonable doubt that the accused person did not have an actual and reasonable belief that the minor was 18 or older.

Penal Code section 261.5

California law organizes the crime of statutory rape into three separate offenses. It defines the offense of (1) sexual intercourse where the accused person was 21 or older and the complaining witness was under the age of 16 (Penal Code section 261.5(a)), (2) sexual intercourse where the accused person was more than three years older than the complaining witness (Penal Code section 261.5(a) and (c)), and (3) sexual intercourse where the accused person was less than three years older than the minor (Penal Code section 261.5(a) and (b)). None of the offenses requires sex offender registration, although the court in its discretion can order registration.

When the complaining witness was younger than 16 year old, a person accused person of statutory rape also may be subject to prosecution for lewd and lascivious acts under Penal Code section 288. In contrast to statutory rape, the crime of lewd and lascivious act on a minor requires mandatory sex offender registration and can carry much a much harsher punishment.

Punishments

When the accused person was 21 years of age or older, the crime of statutory rape can be charged as a felony or misdemeanor. A felony conviction carries a maximum imprisonment term of two, three, or four years or up to one year in the county jail. A misdemeanor conviction carries up to one year in the county jail.

When the accused person was more than three years older than the complaining witness, the crime of statutory rape can be charged as a misdemeanor or felony. When charged as a felony, a conviction carries a maximum imprisonment term of 16 months or 2 or 3 years or up to one year in the county jail. A misdemeanor conviction carries up to one year in the county jail.

When the accused person was no more than three years older than the complaining witness, the crime of statutory rape is punishable only as a misdemeanor. The maximum jail term is six months.

Punishments for statutory rape can include substantial fines, in addition to the imprisonment and jail terms stated above.

Related Offenses involving Oral Copulation, Sodomy, and Sexual Penetration

The California laws defining oral copulation, sodomy, and sexual penetration with minors differ in two important respects from statutory rape. (See Penal Code sections 288a, 286, 289.) First, the former statutes are organized according to different age boundaries. They define specific offenses for respective sex acts with a minor under the age of 14, as well as under the ages of 16 and 18. The offenses with minors under the age of 14 provide for a punishment of three, six, or eight years in prison and for harsher punishment when force or fear was used.

Second, the laws criminalizing oral copulation, sodomy, and sexual penetration with minors all require mandatory lifetime registration as a sex offender. In 2015, the California Supreme Court held that the State Legislature had a rational basis to require lifetime registration for a person who engaged in those sex acts even though it did not require lifetime registration for the offense of unlawful sexual intercourse with minors. (See Hofsheier in Johnson v. Department of Justice (2015) 60 Cal.4th 871.)

The Best Legal Representation

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

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