The Crime of Statutory Rape

The Crime of Statutory RapeThe California criminal justice system has several protections and punishments against crimes of rape. Sadly, various forms of rape can occur, and the topic of this article will be statutory rape. According to California Penal Code 261.5, statutory rape is the “act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.” A minor in California is someone under the age of eighteen.


Statutory rape will apply regardless of consent – if the accused engaged in sexual intercourse with the minor it does not matter if the minor consented at all, it is still considered rape. It can also apply even if the pair engaging in the sexual activity were a couple. For example, if an 18-year-old has been in a relationship with a 16-year-old and they have sexual intercourse, the 18-year-old has committed statutory rape. The elements the prosecution must prove include that sexual intercourse took place, the individuals were not married to one another, and the victim was a minor. With this form of rape, consent is not considered whereas the age of the parties is paramount.


The charges that are applied for statutory rape depend on the circumstances of each case. The deciding factor is age: if the defendant was more than three years older than the victim, they will be charged with a felony; if the defendant was less than three years older, the charge is a misdemeanor; if the defendant was 21 or over and the victim younger than 16, then the defendant will face a felony with increased penalties. The misdemeanor conviction involves summary probation, a fine, and up to a year in jail. A felony requires up to three years in jail, but the increased penalty because of age can mean potentially up to four years in jail, as well as fines.

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