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Statutory Rape / Romeo & Juliet Laws, PC 261.5 Attorney

 

Statutory Rape vs Romeo & Juliet Laws

What is statutory rape?

Statutory rape is the unlawful act of having sex with a minor. A minor is whatever age that a jurisdiction deems the victim to be unable to have the capacity to consent. This means even if the person acts like an adult and looks like an adult, their mind is still not developed enough to knowingly consent to a sexual act. California sees anyone under the age of 18 to be a minor.  

Statutory rape is a serious charge with serious penalties. It's more severe than simply an unlawful intercourse charge, or "Romeo & Juliet" crime.  

What are Romeo and Juliet Laws?

Laws that could be considered statutory rape because one party is a minor can be mitigated to a lesser charge of "unlawful intercourse" under Penal Code 261.5. This is the charge of having sex with a minor when the age difference is usually less than three years. It is like when two high school sweethearts have sex but one of them becomes an adult (18) before the other and they have an age gap of fewer than 3 years. Such charges are usually misdemeanors and do not have the hefty penalties of a statutory rape charge which could be filed as a felony.

What are the defenses for statutory rape under Penal Code 261.5? 

There are several defenses to statutory rape charge under PC 261.5:

  • You honestly and reasonably believed that the alleged victim was over 18.
  • You were falsely accused.
  • You did not have sex with the alleged victim. 

Is consent a defense to the crime of statutory rape?

No, consent is not a defense to the crime of statutory rape, because penal code 261.5 is considered a strict liability law. Minors cannot consent, because the law says they do not have the mental capacity to knowingly consent.  

What are the penalties for statutory rape under Penal Code 261.5?

Misdemeanor Penalties:

  • Up to one year in jail, and/or…
  • Up to $1,000 in fine, and…
  • Probation (usually informal).

Felony Penalties:

  • 16 months or years, or three years.
  • If the accused was 21 or older and the victim was under 16; two years, three years, or four years. 
  • Up to $10,000 in fines.
  • Probation or formal felony probation.

Civil Penalties (only if the defendant is 18 or over):

If the defendant is an adult, they may be forced to pay additional civil penalties, depending on the age difference: 

  • $2,000 if the victim is less than two years younger than the defendant.
  • $5,000 if the victim is at least two years younger than the defendant.
  • $10,000 if the victim is at least three years younger than the defendant, and…
  • $25,000 if the victim was under 16, and the defendant was over 21.

Other Penalties:

  • AIDS test.
  • A crime of moral turpitude--potential immigration consequences.  
  • Possible Aggravated Felony, if a felony charge--potential immigration consequence.
  • If a felony: jury service, public office, voting, firearm restrictions. 
  • If a felony: DNA sample. 

How does California define statutory rape? 

California defines Penal Code 261.5 as:

"(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."

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