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Statutory Rape: Penal Code § 261.5 PC

As you might imagine, rape is considered to be a serious offense in the state of California. With different degrees of rape that can be considered when such a charge is made, it is important to be able to distinguish between the legal characteristics of each. California penal code section 261.5 deals with statutory rape, and it is important to know what you are facing if you are hit with such a charge.

The Statute Explained and Defined

Broadly defined, rape is taken to be the act of having sexual intercourse with another individual without his or her consent. With statutory rape, the charge becomes a bit elevated because the victim is a minor. Such an individual is unable to provide consent to having sexual course, so statutory rape will be the resulting charge.

To be charged with statutory rape, three main elements must be proven beyond a reasonable doubt in order to be convicted. These are:

1) Sexual intercourse with the other person must have taken place.
2) The person being charged and the other individual in question must not have been married at the time the sexual intercourse took place.
3) The person who is alleged to be the victim in the rape must have been under 18 years of age at the time the sexual intercourse took place.

Statutory rape is a special rape charge because the other individual could not have given his or her consent. In other words, the defendant under such a charge can not lodge the defense that the victim said it was ok to proceed with sexual intercourse. Because of the seriousness of this crime, the law does stipulate right down to the second when an individual turns 18. That would be the very second after midnight on the individual’s birthday in the location that they are when the sexual intercourse took place.

It bears mentioning here that one does not have to be over the age of 18 to be charged with statutory rape in California. Even a minor can be prosecuted with this crime if they have sexual intercourse with a minor. While such convictions might be rare, they do occur. This charge would typically be handled in juvenile court.

Misdemeanor or Felony?

If you are hit with a statutory rape charge, the difference in age between yourself and the alleged victim is often what determines whether it will be a misdemeanor or felony. If you are less than three years older than the victim, then statutory rape is generally considered to be a misdemeanor offense. However, the charge can become a felony if you are over the age of 21 and the alleged is victim is younger than 16. As you can imagine, the penalty for a felony conviction of statutory is elevated.

Possible Defenses to a Statutory Rape Charge

Remember that this is a serious charge. A conviction can change your life forever by imposing jail time on you, making it difficult to secure employment when you are released, and so much more. This is why you need to carefully consider your defense with a professional attorney before proceeding. One possible defense involves the honest belief that the alleged victim was over the age of 18 when you had sexual intercourse. In order for this defense to stick, it must be obvious to the average person that the victim looks and acts over 18 years of age.

To prove this defense, the defendant can show representations that were made by the victim indicating that they were, indeed, over 18. Alternatively, the victim might have been met at a bar or club where patrons are to be 18 years or older. The club is supposed to restrict access to minors, so the defendant would have the reasonable expectation that any person they meet is going to be of age. Another defense is that you were falsely accused. Remember, you are innocent until proven guilty. You must be proven to have committed statutory rape beyond a reasonable doubt in order to be convicted.

Possible Penalties for a Statutory Rape Conviction

Since this charge can be either a misdemeanor or felony depending on the circumstances, the imposed penalty can differ dramatically. A felony statutory rape conviction can carry a sentence of up to three years in prison. This can increase to four years if you were over 21 years of age and the victim under 16 at the time of sexual intercourse. Before deciding on the exact charge, the prosecutor will typically look at your previous criminal history.

Remember that a professional and experienced attorney should be consulted with from the outset. This is too serious of a charge to trust with a criminal defender. Consult with a primal defense attorney as soon as possible so that they can begin building your defense.

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