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The law on the crime of statutory rape, also known as unlawful sexual intercourse, is found at California Penal Code Sections 261.5(b), 261.5(c) and 261.5(d).

The term statutory rape is actually an older term that is no longer used in criminal court. The modern term for statutory rape is unlawful sexual intercourse with a minor. The reason for the change in terminology is to reflect a major difference between the crimes of rape of a minor, which is a very serious and violent crimes, and sex with a minor that is unlawful only as a result of the minor's inability to consent to sexual intercourse (as opposed to being forced into sex through force, fear, or threats). However, the term statutory rape is still the more common term outside of criminal court and for that reason both terms are used interchangeably in this article.

 

Statutory Rape & PC 261.5

In short, it is a crime in California for a person who is over the age of seventeen to have sexual intercourse with a minor. A minor is a person under the age of eighteen. The term statutory in the crime of statutory rape means that the law (statute) invalidates a minor's consent to engage in sexual intercourse.

Sexual intercourse means actual penetration of the vagina with a penis. There are separate crimes for other types of criminal sexual activity that do not include a requirement for sexual intercourse, such as sodomy, sexual battery, oral copulation, penetration with a foreign object, and so on, but statutory rape crimes require proof of actual penetration of the vagina with the penis.

PC 261.5 crimes include:

PC 261.5(b) Charged when any person engages in an act of unlawful sexual intercourse with a minor who is not more than three years younger than the defendant.

PC 261.5(c): Charged when any person who engages in an act of unlawful sexual intercourse with a minor is more than three years older than the victim.

 

PC 261.5(d): Charged when any person 21 years of age or older engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age.

Note I: CA law specifically excludes minors from criminal liability for their participation in  unlawful sexual intercourse.

Punishments & Sentence

PC 261.5(b): Statutory rape charged as PC 261.5(b) is considered a misdemeanor. If the defendant is convicted of PC 261.5(b), he or she may be sentenced up to 180 days in the county jail.

PC 261.5(c): Statutory rape charged as PC 261.5(c) is classified either as a misdemeanor or as a felony. If the defendant is convicted of PC 261.5(c) as a misdemeanor he or she may be sentenced up to one year in the county jail. If the defendant is convicted of PC 261.5(c) as a felony he or she may be sentenced up to three years in the county jail.

PC 261.5(d): Statutory rape charged as PC 261.5(d) is classified either as a misdemeanor or as a felony. If the defendant is convicted of PC 261.5(d) as a misdemeanor he or she may be sentenced up to one year in the county jail. If the defendant is convicted of PC 261.5(d) as a felony he or she may be sentenced up to four years in the county jail.

Note II: The maximum jail sentence listed for the above offenses assumes that the defendant is not convicted of additional crimes or sentenced according to special enhancements, such as prior prison enhancements.

Note III: The defendant may earn up to fifty (50%) credit off any actual jail (or work release) for good behavior while in custody.

Probation Sentence: A probation sentence is a period of supervision as opposed to a jail sentence. The terms and conditions of probation generally include requirements that the defendant not commit future crime (during probation at least), pay fines, keep away from victim, etc. Some probation sentences include a mandatory short jail sentence as a term of probation; however, mandatory jail sentences that are associated with probation are usually served alternatively on work release or electronic monitoring (house arrest). Misdemeanor probation sentences (also called informal or summary probation) do not require the defendant to check in with a probation officer; however, felony probation is supervised by a probation officer.

Suspended & Split Sentences:suspended sentence is a predetermined jail sentence that is not actually served unless the defendant violates his or her probation sentence, usually by committing a new criminal offense. Suspended sentences may be available in some PC 261.5(c) and 261.5(d) statutory rape cases. A split sentence is a sentence that is served partially in jail and partially out of jail on work release or house arrest.  Split sentences may be available in some PC 261.5(c) and PC 261.5(d) cases.

Note: Incarceration related to unlawful sexual intercourse crimes is served in a local county jail as opposed to a state prison. this applies to both felony and misdemeanor convictions, even if the sentence is long than a year (PC 1170(h)).

Wobbler Crimes: PC 26.5(c) and 261.5(d) are considered wobbler crimes, which means the district attorney may choose to charge the offense as either a felony or a misdemeanor. Whether or not a prosecutor charges misdemeanor or felony statutory rape charges depends largely on the facts of the case and the defendant's criminal history. Also, sometimes the district attorney will charge a felony offense and the case is reclassified upon request from the defendant's criminal defense attorney for various reason (even over the objection of the prosecutor)

 

Sex Offender Registration: If the defendant is convicted of statutory rape, either as a misdemeanor, or as a felony, the defendant is not ordinarily required to register as a sex offender. However, the defendant may be ordered to register as a sex offender for the length of probation as a condition of probation in some cases. When a defendant is ordered to register as a sex offender as a condition of probation the registration requirement only lasts as long as the length of probation (usually 3-5 years in PC 261.5 cases). In very unusual cases, where the court finds that the unlawful sexual intercourse was the results of an uncontrolled sexual compulsion, the court is authorized to require the defendant to register as a sex offender (PC 290.006).

CIMT & 3 Strikes Law: Statutory rape crimes are not considered crimes involving moral turpitude (CIMT). Also, Neither PC 261.5(c), nor 261.5(d) is considered a strike offense per California's Three Strikes Sentencing Law.

 

In addition to any jail sentence, if convicted of statutory rape under PC 261.5(b), 261.5(c), or 261.5(d), the defendant could face any or all of the following additional punishments: immigration consequences, restraining orders (stay away orders to protect the minor), restitution (if the minor incurred any out-of-pocket costs as a result of the defendant's conduct, such as cost of therapy or medical treatment), penalty fines and court security fees, mandatory HIV testing, civil lawsuits, probation or parole terms that may include further restrictions on liberty (including the loss of gun rights for felony convictions), and more.

Defenses to PC 261.5

Mistake of Fact: Reasonable mistake by the defendant as to the age of the minor could be a defense. this defense applies If the defendant held a true and reasonable belief that the minor was at least eighteen years old at the time of the otherwise unlawful sexual intercourse.

Time barred: Statute of limitations or a legal time limit in which the district attorney may file a criminal complaint against the defendant in a PC 261.5 case. The statute of limitations is one year from the date of the alleged offense for misdemeanors and three years from the date of the alleged offense for felonies.

 

No Penetration: It is a defense to unlawful sexual intercourse that the defendant did not penetrate the victim's vagina with his penis. However, penetration does not have to be more than slight, and neither ejaculation, nor scientific evidence, is required to prove penetration.

Other common defenses to PC 261.5 crimes include: coerced confessions, illegal search and seizure, jury nullification, marriage to the minor at the time of the alleged offense, insufficient evidence, impeachment of testimony or statements reported by alleged victim, and more.

To learn more about the crimes of statutory rape (unlawful sexual intercourse) and 261.5(b), 261.5(c), or 261.5(d), including sentences, defenses, and post-conviction relief, contact our successful sex crimes criminal defense attorneys today for a free consultation. call today!

909-913-3138​

Quick Reference​ Sheet

Crime: Unlawful Sexual Intercourse (Statutory Rape)

Code: PC 261.5(c) (CalCrim No. 1070 & 1071)

Wobbler: Yes. PC 261.5(c) is a wobbler crime. This means that PC 261.5(c) may be charged as a felony or as a misdemeanor.

Incarceration:Felony PC 261.5(c) jail sentence range: 16 months, 2 or 3 years. Misdemeanor jail sentence up to 180 days (1 year if victim and defendant are more than three years apart in age).

Probation: Probation is allowed in felony and misdemeanor PC 261.5(c) cases (assuming other crimes or enhancements that bar probation are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.​

Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.

PC 1170(h)): Yes. PC 261.5(c) is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:

  • Split (half in-custody / half out-of-custody)

  • Suspended (possibly never served)

  • Served in county jail (not state prison)

  • Note: Limitations may apply

Strike: PC 261.5(c) is not a strike offense listed in California's Three Strikes law.

Credits: 50% good conduct credits available.

CIMT: PC 261.5(c) is not a crime involving moral turpitude.

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Firearms: Felony PC 261.5(c) convictions prohibit defendant from owning or possessing a firearm.

Registration: If convicted of PC 261.5(c), the defendant is not required to register as a sex offender with law enforcement. 

Bail: $25,000 (Felony); $5,000 (Misdemeanor) (San Bernardino)

Note: More penalties, direct or indirect, may apply. This info is created for that purpose only; accuracy not guaranteed. No attorney/client relationship is formed by use of this info. If arrested or charged with a crime contact a criminal defense lawyer without delay. 

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Statutory Rape (Unlawful Sexual Intercourse)

PC 261.5 Law & Defense

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