California criminalizes sexual penetration with an underage person or one below the age of consent. Whether the sexual penetration is consensual or non-consensual, the act amounts to statutory rape and is severely punished. The law considers minors below 18 unable to consent to any form of sexual activity, which is why you can be arrested even if the victim agrees to the sexual intercourse. Do not represent yourself in the case when charged with statutory rape or any other sex crime in Bakersfield, CA. Koenig Law Office offers all the help you need to fight the charges.

Explaining Statutory Rape

As per PEN 261, rape means participating in sexual relations without permission or consent from the other party. The perpetrator accomplishes the sexual encounter through threats, force, or fraud. However, under PEN 261.5, which defines statutory rape, it is irrelevant whether the victim gave consent or not. The law considers any person below 18 incapable of providing consent as they lack an understanding of the nature of the act or its repercussions. Therefore, when you engage in sexual penetration with a person 18 or younger, your actions amount to unlawful sex with a child. The law will hold you both criminally and civilly liable for your conduct.

If you and the victim are both underage, you will not face charges for unlawful sexual activity. Instead, the prosecutor will take the Juvenile Court System way and file a petition in a juvenile court.

California statutes only allow underage individuals to engage in the act after turning 18. Technically, when you are under 18 and engage in sexual contact with another minor, you will also be a victim of a PEN 261.5 violation. So, prosecutors do not prioritize charging these cases in a criminal court. They will charge you in juvenile court. Still, the prosecutor has the discretion to file charges in a criminal court. Some of the ordinary circumstances that can result in PEN 261.5 violation charges are:

  • First-time sexual intercourse between two minors who are lovers
  • Sexual relations between a sixteen-year-old student and their teacher
  • Sexual intercourse between a 17-year-old student and a 15-year-old minor

During the trial, the age difference between you and the alleged victim determines the penalties you will face. When there is a considerable age gap between you and the victim, the premise of the statute applies.

Statutory rape is not different from other sex crimes. Someone could falsely accuse you of the offense out of distrust, vengeance, or spite. Without proper court representation, you could be charged and face misdemeanor or felony penalties based on the victim’s age. Nevertheless, the prosecutor has the burden of proof in these cases and must prove all the facts.

PEN 261.5 Facts the Prosecutor Needs to Prove

It’s a challenge to gain a conviction for statutory rape. The prosecutor must table evidence on at least the following facts of the case:

  • You engaged in sexual penetration, however insignificant it is, with the alleged victim
  • You, the defendant, and the victim were not in a marriage when the violation occurred
  • The younger person in the sexual penetration was below 18

When proving the age element, the prosecutor must provide evidence of your age and that of the victim when the sexual intercourse happened. The age difference matters greatly during prosecution as it determines the penalties you will face.

PEN 261 rape considers whether the victim consented to the penetration for a sentence to occur. However, with statutory rape, the consent question is irrelevant.

Furthermore, unlike rape, a PEN 261.5 violation does not require the prosecutor to show sexual intercourse through fraud, force, or fear.

The critical fact the prosecutor must prove in these cases is the parties’ age. In law, one minute past midnight on your birthday makes you a year older. Assume you are an adult with sexual relations with your 17-year-old high school girlfriend. If it turns out you engaged in the act a minute past midnight on their birthday, the law considers the girlfriend a year older. Therefore, even if you are charged with statutory rape after the act, you will not be guilty because the alleged victim is 17 plus one years. Nevertheless, if you had sex before midnight, you will be guilty of statutory rape because, in the eyes of the law, the girlfriend was still 17 at the time of the incident.

Statutory Rape Criminal Penalties

When the prosecutor provides sufficient evidence to support the three facts highlighted above, you will gain a conviction and face the sentencing guidelines. The court imposes misdemeanor or felony penalties based on the age gap between the involved parties and your criminal record.

Per PC 261.5, unlawful sexual intercourse with a child not younger than you by up to three years is a misdemeanor charge. When the age difference is above three years, the offense is a wobbler subject to misdemeanor or felony penalties upon sentencing. It is critical to note that when you are over 21, and the said victim is 16 or younger, the offense remains a wobbler, although felony penalties when the age gap is over five years are stricter than when there is at least a three-year age gap.

Many states adopt the Romeo and Juliet statutes, but California is not one of them. The law legalizes sexual intercourse among minors of equal age, but the action is a misdemeanor charge in California. The prosecutor will prefer misdemeanor charges when the age difference is three years.

1.  Misdemeanor Consequences

The possible penalties when the court sentences you for a misdemeanor are:

  • Informal or misdemeanor probation
  • A financial court fine of $1,000
  • At most, twelve months in jail

2.  Felony Punishments

The consequences of a felony sentence are:

  • Formal probation or misdemeanor probation with at most 12 months in jail
  • Jail custody of 16, 24, or 36 months. When the age difference between you and the victim of at least 60 months, you will serve jail custody of twenty-four, thirty-six, or forty-eights months
  • A court fine not surpassing $10,000

Felony probation will severely affect your life because you will be assigned a probation officer you must meet regularly. The requirement to report to the supervisor means you cannot relocate even if it is for a job, meddling with your livelihood. On the other hand, misdemeanor probation does not involve frequent meetings with your supervisor. The court does the supervision.

Also, statutory rape does not impose the duty to enlist as a sex offender. Nonetheless, when convicted for other sex offenses like rape or a lewd act with an underage, your name must appear on the sex offender register.

Apart from the legal penalties, a statutory rape conviction attracts disciplinary action from your licensing board if you hold a professional license in law, psychology, social work, or medicine. Additionally, you risk losing child custody and are only allowed to have supervised visits or contact with the children. 

PEN 261.5 Violation Civil Penalties

On top of the criminal charges and penalties mentioned above, your victim or their family can file a civil lawsuit for damages incurred after the incident. Therefore, while serving a jail term and paying court fines, you will incur extra fees in victim restitution. However, these fees are only produced by adult offenders. The court does not impose the fees when charged as an underage person.

The civil penalties you will face for your wrongful act depend on the age gap. These penalties are:

  • Court fines of $2,000 for sexual relations with an underage at most twenty-four months younger
  • A maximum of $5,000 fines when the age gap is over two years
  • $10,000 court fines if you are at least thirty-six months older than the victim
  • Up to $25,000 fines if at the time of the crime you were at least 21, and the victim was at most 16

Probation Terms for PEN 261.5 Violation

When sentenced to probation for statutory rape, the conditions you must meet are:

  • Meeting your probation supervisor as per the court instructions
  • Participate in community labor
  • Mandatory sex addiction lessons
  • A requirement to live away from children or not to live close to kindergarten schools or parks

Regardless of the baseline charge, the court will suspend it and impose the original sentence if you do not adhere to the probation terms. However, some of the court's probation terms are difficult to abide by and elevate the risk of suspension. Therefore, you should work closely with the Koenig Law Office to contest the charges. The defense attorneys will negotiate a favorable kind of probation with friendly terms that will increase the chances of completing the program and avoid a jail sentence.

Defense Strategies to Fight Statutory Rape Charges

You cannot afford to contest PEN 261.5 charges alone. You need an experienced defense attorney to have the charges reduced or dismissed. A public defender or attorney with no experience in sex crimes is not an option. You need the Koenig Law Office to help you fight the charges. We understand that the parents of your victim or the victim could be after the monetary benefits you are offering behind closed doors and be unwilling to help the prosecutor with the case. When the victim fails to give a straight response or comply, the prosecutor will have a weak point, elevating the chances of a favorable outcome.

Also, proving sexual penetration can sometimes be an uphill task for the prosecutor, giving your defense team an advantage. Your attorney can make the following defenses to counter the evidence presented by the prosecutor:

You are Honestly Convinced the Victim Was an Adult

The law allows a mistake of fact but discourages ignorance. Therefore, you can claim that you mistook the victim's age and honestly believed the victim was above the consent age. The defense strategy will work if the victim lies about their age. The evidence you must produce to back your claim includes:

  • A statement or testimony by the victim that could have indicated they are adults
  • A description of the victim’s dressing and overall appearance
  • The location where you met the alleged victim

If the first meeting with the victim was at a location for adults only, like a bar, you could assert that you were in good faith convinced the victim was over 18. Besides, you can argue that the victim looked older than their actual age or dressed in a fashion that suggested they were older.

When the victim is an adult, you cannot face charges or convictions for statutory rape.

You are Falsely Accused

Most statutory rape charges involve only allegations from the victim without concrete or physical evidence to support the same. Prosecutors heavily rely on circumstantial evidence to build a case, which gives your defense team an advantage. Most PEN 261.5 violations are initiated by anger, jealousy, revenge, or sometimes because your girlfriend’s parents dislike you. Like the prosecutor, you must back up your claims with evidence. The evidence we at the Koenig Law Office use to show false accusations includes:

  • Witness statements can show the victim's motive for making false allegations.
  • A private polygraph test results to persuade or sway the court that you did not engage in sexual relations with a child.

Lastly, your attorney can argue that there was no actual sexual penetration. Instead, you and the victim engaged in oral sex or foreplay. Although you will not be convicted of statutory rape, you can face other charges like a lewd act with a minor.

The above-explained defenses are not the only strategies you can use to contest PEN 261.5 violation charges. Several other defense theories are available to help you challenge the counts based on the nature of your offense. Koenig Law Office understands these defenses and will use the right strategies to obtain a favorable result.

Related Offenses

The three common sex offenses that relate to statutory rape are:

1.  Lascivious Act With a Child

PEN 288 provisions imply that a lascivious or lewd act with a minor occurs when you unlawful touch a child younger than 14 for sexual arousal or pleasure. When the child involved is at least 15 years, the offense becomes child molestation, filed as a felony.

Also, whether sexual intercourse happened between you and the child is irrelevant. The critical aspect is that they demonstrate your actions were motivated by the desire to sexually pleasure yourself or the child, even when the touch only occurred on the cloth.

When charged with child molestation, a sentence will result in at most eight-year prison incarceration. Again, a guilty verdict for PEN 288 violation imposes on you a duty to register as a sex offender.

Although statutory rape and lewd act with a child involve a minor, these offenses are not the same. Just because you have been convicted of PC 261.5 violation with a child aged 13, does not mean you will automatically be guilty of PEN 288 violation. The prosecutor must table evidence showing there was sexual intercourse for you to be convicted under PEN 261.5. While in PC 288, they must show you had a desire for sexual gratification at the time of the incident.

Statutory rape is a lesser offense compared to a lewd act with a child. Therefore, you can use it as a plea bargain if you have been charged with child molestation to avoid the duty to enlist your name in the sex offender register.

2.  PEN 261 Rape

Under PC 261, rape occurs when you engage in sexual intercourse with a person without their consent. Further, the prosecutor must prove that you used threats, force, or fraud to accomplish the sexual act. This is different from statutory rape because a conviction does not hinge on the victim’s consent.

Rape is a felony whose maximum prison sentence is eight years. Besides, a conviction adds a strike on your record. The court can also order you to register as a sex offender for a lifetime, resulting in social stigma and a damaged reputation.

Furthermore, false accusations are typical in rape charges like statutory rape. The counts could be initiated by jealousy, dislike, or revenge. When a former lover (below 18) accuses you of rape because you broke up or for revenge, you will face both rape and statutory rape charges. The Koenig Law office will come in handy in this situation because they will present evidence to demonstrate you were falsely accused. Additionally, we will convince the prosecutor during plea bargaining to drop the rape charges and charge you with statutory rape, which is a lesser offense. This will be a relief because you will avoid felony penalties and the obligation to enlist as a tie-three sex offender.

Whether you have been charged with statutory rape or related offenses, the prosecutor has a timeline to file charges. However, when charged with aggravated rape, there is no limit on how long the prosecutor can wait before filing charges.

Find a Profound Sex Offenses Attorney Near Me

At the Koenig Law Office, we understand sex crime laws, including statutory rape. Also, our attorneys understand the court processes in Bakersfield, which is favorable for your case. Our livelihood, freedom, and reputation are in the line, which is why we will fight tooth and nail to avoid a conviction. Contact us today at 661-793-7222 to speak to an attorney who understands the ropes.