Under California Penal Code 261.5, it is unlawful for anyone regardless of their age to have sexual intercourse with a person under the age of 18 years. Intercourse could occur by any type of penetration and however slight it may be. It is not necessary that the perpetrator use force to be charged with this crime. Once again statutory rape could be charged against anyone even if the perpetrator is a minor and committed the crime against another minor. However, the age difference between the perpetrator and the victim is the most important factor in statutory rape cases and what type of punishment should be imposed. Generally minor against minor statutory rape prosecutions are rare but are possible. If charged, consent or authorization by parents could not be asserted as a defense.
MISDEMEANOR STATUTORY RAPE
If the perpetrator is not more than 3 years older than the victim, this crime may be charged as a misdemeanor and the maximum penalty is one year in county jail.
STATUTORY RAPE AS A WOBBLER
This means that the prosecutor may charge the crime as a felony or a misdemeanor depending on the facts and circumstances of the case. This could occur if the perpetrator was more than three years older than the minor or if the perpetrator was over the age of 21 and the victim was under 16 years of age. Here, the maximum penalty will be one year if charged as a misdemeanor and 2, 3, or 4 years if charged as a felony.
DEFENSES TO STATUTORY RAPE
1. The perpetrator and the victim were legally married.
2. The defendant actually or reasonably believed that the victim was over the age of 18.
3. No sexual intercourse took place.
4. The Statute of Limitation which was a deadline for filing of a complaint has run out
The Statute of Limitation for misdemeanor PC 261.5 is one year from the date of the offense. The Statute of Limitation for felony PC 261.5 is 3 Years from the date of the offense.
EXCEPTIONS TO STATUTE OF LIMITATIONS
PENAL CODE 803 (f) EXCEPTION
A sex crime may be charged in California within one year of its reporting if:
– There is substantial evidence of sexual conduct when the victim was a minor, and
– There is independent clear and convincing evidence that corroborates the victim’s allegations
PENAL CODE 803(g) EXCEPTION
Prosecution for the sex crime of sexual penetration by a foreign object is allowed within one year of the date of DNA test that caused the identification of the perpetrator. Certain other limitations apply to this exception.
SEX REGISTRATION
A conviction of California Penal Code 261.5 does not require sex registration ordinarily required per Penal Code 290. The exception is when the defendant was sentenced to California Department of Corrections division of Juvenile Justice when the offense convicted of is listed under Penal Code 290.
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