Statutory Rape

California Statutory Rape Attorney

Statutory Rape, as defined by California Penal Code section 261.5(a), is defined as unlawful sexual intercourse with a minor, who is not your spouse.  A minor is person under the age of 18 years.  Consensual sex with a minor is still illegal.  Statutory rape presumes the sex was consensual.  If the sex was not consensual, then the defendant would be charged with rape or another sexual offense involving force.  Statutory rape also presumes the minor was 14 years or older.  Sex with a child under the age of 14 is not statutory rape because a child under the age of 14 cannot legally give consent.  Therefore, consensual sex with a child under 14, is a violation of Penal Code section 288 – lewd conduct with a minor.

Penal Code section 261.5 indicates that penalties are proportional to the age gap between the defendant and the minor.  According to Penal Code section 261.5, if the age difference between the defendant and the minor is three years or less, then the crime is a misdemeanor with a maximum sentence of six months county jail.  If the age difference between the defendant and the minor is more than three years, then the crime is a wobbler with a maximum punishment of three years state prison.  If the defendant is 21 or over, and the minor is under 16, then the crime is a wobbler with a maximum punishment of four years state prison.  Statutory rape, as defined by Penal Code section 261.5, does NOT require lifetime sex offender registration pursuant to California Penal Code section 290.

Oral Copulation and Sodomy with a Minor

Although statutory rape is strictly defined as straight sex, oral sex and anal sex with a minor is also considered statutory rape.  There are different charges for these crimes.  Oral sex with a minor is a violation of California Penal Code section 288a.  California Penal Code section 288a(b)(1) states “any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in county jail for a period of not more than one year.”  California Penal Code section 288a(b)(2) states “any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.”

Anal sex with a minor is a violation of California Penal Code section 286.  California Penal Code section 286(b)(1) states “any person who participates in act of sodomy with another person who under 18 years of age shall be punished by imprisonment in the state prison, or in county jail for not more than one year.  California Penal Code section 286(b)(2) states “any person over the age of 21 years who participates in act of sodomy with another person who under 16 years of age is guilty of a felony.”

Both of these crimes – Penal Code section 288a and Penal Code section 286 – require lifetime registration as a sex offender pursuant to Penal Code section 290.

The California legislature treats oral copulation and sodomy worse than straight sex.  For example a 20 year old adult who has straight sex with a 17 year old minor is only guilty of a misdemeanor.  However, that same 20 year old adult who has either oral sex or anal sex with a 17 year old minor is guilty of a wobbler, which means the crime can be charged as a felony.  Also, a 24 year old adult who has straight sex with a 15 year old minor is guilty of a wobbler, which means the crime can be charged as a misdemeanor.  However, that same 24 year old adult who has either oral sex or anal sex with a 15 year old minor is always guilty of a felony.

The biggest difference between statutory rape involving straight sex and statutory rape involving oral copulation or sodomy is that the former does not require lifetime registration as a sex offender, but the latter do.  Why the disparity?  We can only speculate that because our legislators are prudish about sex, there is a difference in their minds between straight sex and oral/anal sex, with the former being more normal.

However, if a person has been convicted oral copulation or sodomy with a minor, the penalty for sex registration can be set aside by the judge under certain circumstances with a Hofsheier motion.  These circumstances must include the minor being at least 16 years of age and the age difference between the parties as 10 years or less.  Even then, a Hofsheier motion is not always granted, but Fred Thiagarajah’s experience with sex crimes allows him to get the best results for his clients.

Elements of Statutory Rape

In order to convict a defendant of statutory rape, the prosecution must prove each of the following elements beyond a reasonable doubt:

1.      The defendant had sexual intercourse with the victim;

2.      The defendant and victim were not married at the time of the sexual intercourse;

3.      The defendant was at least 21 years old at the time of the intercourse;

AND

4.      The victim was under the age of 18 at the time of the intercourse.

Sexual intercourse means any penetration, no matter how slight.  There does not have to be any ejaculation for sexual intercourse to occur. 

Defense to Statutory Rape

Consent is not a defense to this crime.  It doesn’t matter if the victim agreed to have sex.

However, the defendant is not guilty of this crime if he reasonably and actually believed that the other person was age 18 or older.  However, the defendant’s belief must be actual and reasonable, with evidence supporting that belief.  For example, if defendant picks up the victim from a junior high-school, it is difficult to argue that the defendant thought she was an adult.  On the other hand, if the defendant met the victim in a nightclub where patrons must be 18 years of age or older, then it’s reasonable that the defendant believed the victim was an adult.

Other Consequences

Not only can a statutory rape conviction lead to criminal penalties and lifetime registration as a sex offender (if oral sex or sodomy), but it can also have drastic employment, licensing and immigration consequences.  Having a statutory rape conviction can prevent a person from finding a job or lead to a person being fired from their current job.  Furthermore, many professions that require licensing from a state board, such as doctors, pharmacists, nurses, lawyers, accountants, contractors, teachers, real estate agents and stock brokers, all require background checks.  A professional who has a statutory rape conviction on their record risks losing their professional license, or never acquiring it in the first place.  The most severe impact of a statutory rape conviction involves immigration consequences.  Non-citizens who are permanent residents, with a green card, or temporary visitors, with a student visa or work visa, can be denied admission or naturalization or even deported, with a statutory rape conviction on their record.

The Right Lawyer

Choosing the right criminal defense lawyer will be the most important decision someone can make when facing criminal statutory rape charges.  Many people who face statutory rape charges are good people who made a mistake or exercised poor judgment.  There are also some people who have been wrongfully accused of statutory rape, based on a misunderstanding or false evidence.  You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively.  You need attorney Fred Thiagarajah. 

As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients, for criminal cases and immigration consequences.   Fred Thiagarajah has worked in the Sexual Assault unit of the District Attorney’s office and uses his specialized knowledge of sex crimes to defend his clients, including those accused of statutory rape.  For an example of his work, please see his case results and read his client testimonials.  With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.

Fred Thiagarajah – The Right Lawyer.  The Right Result.  The Right Choice.

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