Statutory Rape in California: 216.5 (PC)

How Peter Liss Can Help Defend Your Statutory Rape Case

If you have been accused of a sex crime involving children, such as statutory rape, you need a lawyer you can trust to help protect your rights during the investigation and the prosecution. Vista defense lawyer Peter M. Liss can help protect you by:

• Advising you before and during police contact.
• Working to get you released from jail with low or no bail.
• Investigating evidence and witness credibility.
• Uncovering evidence to back up your alibi, when applicable.
• Questioning if there is sufficient evidence to prove intercourse occurred.
• Pushing for the charge to be filed as a misdemeanor instead of a felony.
• Negotiating a plea bargain allowing you to avoid jail whenever possible.
• Fighting to avoid discretionary sex offender registration.
• Representing you at trial if necessary.

Call (760) 643-4050 today to start building your defense.

How California’s Statutory Rape Law Works

Under Penal Code 261.5 (PC), minors are not considered mature enough to truly consent to sex. For that reason, it is illegal to have sex with anyone under 18, unless the parties involved are married to one another. It does not matter if the minor initiated the sexual intercourse or if both parties are underage; it is still a crime.

Notably, while often framed in the same conversations as statutory rape, grooming, talking to or dating a minor while waiting for them to turn 18 before you have sex, is legal.

Does California Have a Romeo and Juliet Law?

No. “A Romeo and Juliet law is an exception written into statutory rape laws to prevent someone from being convicted for a consensual sexual encounter with a minor close to their same age,” explains attorney Peter Liss. For example, if an 18-year-old and a 17-year-old slept together.

Because California law says no one under 18 is legally old enough to consent, two minors who willingly have intercourse could both technically be charged for statutory rape. “Fortunately, prosecutors in San Diego County very rarely press charges in these cases,” notes Liss.

How Statutory Rape Cases Are Investigated

In most cases, 261.5 (PC) investigations are started after the juvenile’s parent contacts the police. They also may begin after:

• School authorities report the relationship.
• The minor reports their partner (often after a breakup).
• Officers find evidence of the crime while investigating another offense.

Unlike child molestation or abuse, mandated reporters, such as doctors and therapists, are not required to report all suspected cases of statutory rape². Exemptions apply when:

• The younger party is under 14, and their partner is over 14.
• The minor is 14 or 15, and their partner is over 21.

When police discover statutory rape may be occurring, they may investigate by:

• Interviewing both parties.
• Questioning the parents of one or both minors.
• Reviewing phone records, texts, IMs, social media pages, emails, or other forms of communication.
• Obtaining forensic evidence when necessary.
• Setting up recording calls between the suspect and the alleged victim or their parents.

If you are suspected of statutory rape, do not agree to any police searches without a warrant, and do not speak to officers without a lawyer present.

What Should I Do if I’m Accused?

The first, and most important, thing you should do is call an attorney experienced in handling this type of case. Beyond that:

• Avoid speaking with the victim or their parents.
• Do not speak with the police without your lawyer present.
• Refuse warrantless searches of your home, cell phone, or other property.
• Never delete evidence such as texts, social media messages, or pictures.
• Collect any evidence that can help back your side of the story.
• Do not discuss the case online with anyone —even while using a private account.

Is Statutory Rape a Misdemeanor or Felony in California?

Statutory rape can be either a misdemeanor or a felony. “While California has no true Romeo and Juliet law, 216.5(b) ensures the charges are filed as a misdemeanor when the act was consensual, and the couple is no more than three years apart in age,” explains Liss.

When the age difference is greater than three years, the prosecutor will decide whether to charge the crime as a misdemeanor or felony under based on the defendant’s criminal background and the specifics of the case. Typically, cases are viewed more harshly if the accused party has some type of authority over the minor, for example, they are the juvenile’s teacher, coach, or boss. Similarly, prosecutors are more likely to file felony charges if the minor was pressured or coerced in any way.

In some cases, a San Diego criminal defense attorney can play a critical role in helping to convince the prosecutor to charge the crime as a misdemeanor.

Penalties for Statutory Rape

Most statutory rape cases, are charged under 261.5(c) (PC). Under this subsection, misdemeanor statutory rape charges carry a penalty of up to one year of jail time and $1,000 in fines, while felonies carry a maximum sentence of three years in state prison and up to $10,000 in fines.

Age Difference Enhancements

Under 261.5(d), the sentence could be enhanced to carry as many as four years in state prison and $25,000 in fines if the defendant was over 21 and the alleged victim was under 16 when the intercourse took place.

Additional Consequences

Aside from criminal penalties, you may suffer additional consequences if you are convicted of statutory rape, including:

• Loss of professional licenses, especially if you regularly work with children.
• Immigration consequences, including potential deportation.
• College disciplinary action.
• Military consequences, including potential loss of rank or dishonorable discharge.
• Loss of firearm rights for felony convictions.

While the California Fair Chance Act prohibits most employers from firing or refusing to hire someone solely because they have a criminal conviction, they can take the type of crime into account if it relates to the job itself.³ If you work around children or other individuals who are considered unable to consent to sex, a conviction may dramatically affect your job prospects.

Are Statutory Rape Convictions Subject to Megan’s Law Registration?

No. Unlike other sex crimes involving children, statutory rape convictions do not result in mandatory sex offender registration. However, this penalty can be added as part of the sentence.

In cases where you may be at risk of being required to go on the state’s sex offender registration list, your lawyer may be able to negotiate a plea bargain that will ensure this does not happen.

Related Sex Crimes

Those charged with statutory rape may also face other charges for similar offenses, depending on the specifics of the case. These allegations may include:

• Child molestation
• Sexual battery
• Child pornography
• Soliciting a minor
• Sextortion
• Sending harmful matter to seduce a minor
• Annoying or molesting a child
• Indecent exposure
• Child abuse or endangerment
• Solicitation of prostitution

What the Prosecution Must Prove

While the law defining statutory rape is pretty cut and dry, prosecuting it is often more complex. That’s because the prosecution must prove beyond a reasonable doubt that:

• The two parties did have sexual intercourse that involved at least momentary penetration.
• The alleged victim was under 18 when the intercourse first occurred.
• The couple was not married.

In many cases, finding sufficient evidence to prove when and if sex occurred is more difficult than most people realize. It can prove especially challenging if the minor is uncooperative with the police and prosecutors.

“When these facts are not immediately obvious or if the juvenile or their parents had something to gain by making false allegations,” explains Liss, “your lawyer may have a strong case for the charges to be dropped or to negotiate a plea bargain with minimal penalties.”

Common Statutory Rape Defenses

Every case is different with unique defense strategies. When you call attorney Liss, he will work with you to find the strongest defense for your specific case. In general, though, some of the strongest defenses for statutory rape include:

A Belief That the Minor Was Over 18

The most common defense for those accused of statutory rape is simple, but effective —the honest and reasonable belief that the person involved in the sexual activity was over 18. It is hard for the prosecution to prove that you knew someone was under 18 in many cases, particularly if you met the alleged victim at a bar or club where people must be over 18 or even 21 to gain access.

No Sex Occurred

Statutory rape charges cannot be filed unless some amount of penetration occurs. If there was no penetration, this can be a strong defense against the charges.

The Couple Was Married

Statutory rape charges do not apply if the couple is legally married. California allows minors of any age to marry, as long as their parents consent to the marriage and a judge agrees to the proceedings. Even if a couple is engaged, though, it is still illegal to have intercourse before the wedding occurs.

Lack of Evidence

It is often difficult for the prosecution to prove the couple had sex before the minor turned 18. A defense lawyer can use a lack of evidence to seek a dismissal or reduction of charges.

False Allegations

Minors and their parents may make false accusations, especially during family disputes, breakups, or other emotionally charged situations. If you can show a reason the alleged victim may be falsely claiming you slept together, your attorney may be able to use this information to fight the charges.

Mistaken Identity

If police or parents are unsure who the alleged victim was talking to online, they may make incorrect conclusions. Similarly, sometimes school officials mistakenly assume someone who drops the minor off at school is the one they are dating.

Illegal Police Conduct

If the police use excessive force, illegal interrogation methods, unlawful search tactics, or otherwise violate your rights, your attorney may file a motion to suppress all evidence related to these unlawful tactics. In some cases, a successful suppression motion could even be enough to result in the charges being dropped altogether.

Can Statutory Rape Charges be Reduced?

Yes, your defense attorney may be able to negotiate the charges down to a lesser allegation or from a felony-level charge to a misdemeanor. A strong plea deal can also help you avoid sex offender registration or avoid incarceration through alternate sentencing.

What Not to Say After Being Accused of Statutory Rape

If you have been accused of having intercourse with someone below the age of consent, do not make any statements to the police without your lawyer present. If police officers, the victim, or their parents call, do not answer. If you answer accidentally, request that they speak with your attorney and then hang up.

Whatever you do, try to avoid saying the following in an attempt to defend yourself because these statements can be seen as full or partial confessions:

• “They Initiated It”
  Consent is not a defense to statutory rape.
• “They Said They Were 18”
  An honest belief that the other party was 18 is a valid defense, but when it is obvious the juvenile was a minor, it doesn’t matter how old they claimed to be.
• “Their Parents Approved”
  While parents are required to consent to underage marriages, they cannot consent for their children to have sex.
• “We Only Had Sex Once”
  Even once is enough for you to be charged and convicted.

Call a Defense Attorney Today

Whatever the details of the case, it pays to contact a criminal lawyer as soon as you have been arrested for statutory rape or find out you are under investigation for the crime. Never speak to the police without your criminal defense attorney present.

If you have been charged with statutory rape, please call (760) 643-4050 to schedule a free, confidential consultation with lawyer Peter M. Liss.