Sex with a Person less than 18 years old – Rape Laws

Having Sex with a Person Under 18 – Penal Code 261.5


California’s Penal Code 261.5 involves “statutory rape”.  Statutory Rape takes place when any person engages in sexual intercourse with a person under the age of eighteen (18).

Statutory rape can be charged even if the sex was consensual…or even initiated by the minor.    Unfortunately in our world teenagers are sexually active…which means that the crime of statutory rape occurs every day.


Statutory rape is a wobbler, which means it can be charged as either a misdemeanor or a felony.

Legal Defenses

I know certain legal defenses that can help you beat statutory rape charges.

The two that I’ve found most successful are:

  • You had a reason belief the person was over 18, and
  • There was no sexual intercourse.

If after reading this article, you have additional questions, we invite you to contact us at the Law Office of William Daley.

Certain circumstances determine how statutory rape is charged and what the penalties are:

  1. If you’re not more than three years older than the alleged victim, it’s always a misdemeanor.
  2. If you’re more than three (3) years older than the alleged victim, it may be charged as either a misdemeanor or a felony.
  3. If you are twenty-one or older and the alleged victim is under sixteen at the time, you can face either a misdemeanor or a felony.

The penalty for misdemeanor statutory rape includes:

  • Informal probation,
  • Up to one year in county jail, and
  • fines.

Felony penalties for statutory rape:

  • Sixteen (16) months, two (2) years or three (3) years in custody…UNLESS the defendant was 21 or older and the “victim” was under 16, in which case the potential sentence is two (2) years, three (3) years or four (4) years,
  • Up to ten thousand dollars ($10,000) in fines.

Unlike California Penal Code 261 rape, consent is NOT a defense.

Under Penal Code 261, California rape laws make it a defense to the crime if the alleged victim consented to having sex.  With statutory rape, this isn’t the case.

There are other sex crimes related to California Penal Code 261.5 statutory rape.

Lewd or lascivious acts with a child (Penal Code 288)

The crime of “lewd acts with a child (Penal Code 288) ” takes place when a person touches a child 14 years or younger (and 15 years or younger under some circumstances) somewhere on his/her body for purposes of sexual gratification.

Unlike statutory rape, most lewd acts with a minor (also known as child molestation) are necessarily felony offenses, subjecting the accused to up to eight (8) years in state prison.

In addition, Penal Code 288(a) lewd or lascivious acts with a child charge requires anyone convicted to register as a sex offender under Penal Code 290 PC.

Rape (Penal Code 261 PC)

This crime occurs when you have sexual intercourse with another person without their consent…accomplished by means of threats, force or fraud.   This is in contrast to the crime of statutory rape under Penal Code 261.5 PC…where the question of whether the alleged victim consented is irrelevant.

Rape is always a felony, punishable by up to eight (8) years in the state prison.   It is also a “strike”, and it requires lifetime registration as a sex offender.

William Daley can help you fight these charges…or try and get at least the rape charges dismissed so that you are less likely to face felony penalties and can avoid the sex offender registration requirement.

Call us today (619) 238-1905