Statutory rape

Accused of Statutory Rape, Date Rape or Forcible Rape in Northern California?


In rape cases, false allegations are very common. These situations are often a case of he said/she said and consequently they are difficult to prove. Early and aggressive investigation can and does result in dismissal before trial or even before charges are filed.

If charges have been filed, our team, led by former sex crime prosecutor Jim Reilly, has the skill and experience to win at trial.

Call us day or night for a free and confidential case review to discuss your options.

  •  Staff Includes Former Sex Crime Unit Lead DA
  •  False allegations are very common, we fight them
  •  Respected Psychological and Medical Experts
  •  Early and Aggressive Intervention
  •  Challenge of alleged victim’s credibility



Having sex with someone under the age of 18 is a crime in California under Penal Code 261.5. The law refers to this offense as ‘unlawful sexual intercourse’, but it is commonly referred to as statutory rape. This offense generally covers those cases where both parties agreed to have sex, and did so willingly, but where at least one of the parties was underage.


It is an offense to have sex with someone under 18 in California because that is the ‘age of consent’. This is because the law considers all people under the age of 18 to be unable to consent to having sex. This does not mean, of course, that a person under the age of 18 cannot actually agree to have sex with someone – they can and do, and it happens all the time. Rather, the idea of being old enough to have the capacity to consent to sex is a legal concept.


Some examples of when a statutory rape offense has been committed include:

  • A 17-year-old high school student has sex with her 20-year-old college boyfriend.
  • A 30-year-old tutor has sex with one of her students, who a 16-year-old.
  • Two high-school students have sex at a party, one is 15 and one is 17.


The age of consent is not 18 all over the world – in fact, it is not even the case across the United States. In some States, such as Nevada and Washington, the age is 16. In others, such as New York and New Mexico, it is 17. Across Canada the age of consent is 16. In several countries around the world it is even lower than 16. What this shows is that there is significant disagreement between jurisdictions about when people should be able to engage in sex – and recognition in many jurisdictions of the fact that teenagers do have sex, and at least for older teenagers that is okay.


Regardless of the situation in other jurisdictions, the fact that the age of consent in California is 18 means that there are countless people committing the offense of ‘statutory rape’ every day. More significantly, it means that there are many people charged with this offense – even in cases where they probably should not be, and where many people would consider they did nothing wrong.


The law in this area often involves a double standard – most charges are against males, even though females undoubtedly commit this offense too. And further, there is significant police discretion involved in deciding whether there will  be charges filed in a case. The decision whether to charge someone or not can rest very heavily upon the individual police officer’s ideas of morality, or what their view of the facts of the case is.


At Summit Defense Attorneys, we know that there is a significant difference between those cases where someone might question the morality of your actions versus those cases where criminal penalties are deserved. We do not want you to bear the burden of a criminal conviction for the rest of your life for an offense that you really should not have been charged with in the first place, and we will always work to keep those kinds of matters off our client’s records. To speak to one of our experienced attorneys about how we can help with your case, call us today.


Can I settle this out of court?

Yes – it might be possible for us to settle your matter out of court. How we can assist you will depend on what stage your case it at, and the exact nature of the accusations against you – but whatever the case, our goal is always the full dismissal of all charges against you.


It is essential, however, to try to settle any matter as soon as possible, and certainly before charges are filed. Your best chance of doing this is with the assistance of a lawyer who has experience in these kinds of cases. Summit Defense attorneys include a former District Attorney, former investigator, and former police officer – so we have experience in investigating and prosecuting these kinds of matters. This means that we are powerful and persuasive negotiators because we know how things work from the other side.


In many statutory rape cases, we are often able to avoid having charges filed at all. And  in cases where the matter cannot be dismissed completely, there are still a wide range of ways to have these matters disposed of that involve less serious charges filed or that will not result in a permanent conviction.


Do I really need a lawyer?

Yes, you do. Not only is it your right, but your best chance of fighting the case against you is by having an experienced Summit Defense lawyer on your side. We have handled many cases of statutory rape that never saw the inside of a courtroom – we are your best chance of making sure that you can avoid court too. Further, it is not unusual in some of these cases for the Prosecutor to file more serious child sex or child molestation charges, along with a statutory rape charge – if that happens in your matter, you may be facing devastating consequences including many years in prison, and registration as a sex offender.


In a recent case our client, a 28-year-old man, was charged with having sex with a 15-year-old girl. The prosecutor actually filed quite serious child sex charges against him, but we were able to negotiate to have the matter dealt with as a case of statutory rape. Further, we were able to avoid our client going to jail altogether, based on our successful application for alternative sentencing, and he did not have to register as a sex offender. We were able to get this result for our client because we were involved in his case right from the start.


It is important to contact a lawyer as soon as you can, because there will be opportunities to settle or negotiate your case at the start that won’t exist later.


Who can be charged with statutory rape?

It is important to realize that anyone can be charged with statutory rape – regardless of their age, or their relationship with the victim. While the most common cases are those where an older adult is charged with having sex with someone under 18, it is possible for juveniles to be charged with this offense as well. And further, being in a relationship with the supposed ‘victim’ does not protect you from being charged with statutory rape – even in cases where the minor may have initiated the sex, you can still be found guilty of this offense.


What should I say to the police if I am questioned or arrested?

Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.


In some cases the police might try to ask you some questions about an incident without arresting you. If that happens, it is important to remember that you still do not have an obligation to say anything, and in fact you should never answer any questions that relate to whether or not you had sex with someone under 18 years of age.


When you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them.


Being charged and going through the arrest process can be scary and intimidating, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. Summit Defense has defended thousands of cases and it has never, ever helped someone when they’ve spoken to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney is by far your most effective defense strategy.


What is the cost?

When you have your first consultation with an attorney from Summit Defense, we will discuss the estimated cost of your case with you. Every matter is considered on a case-by-case basis, and we will always act in your best interests – which means keeping costs as reasonable as possible while defending your matter to the full. One thing is for certain though – the sooner you have an attorney involved in your case, the better. With early intervention, we can do our best to reach an early resolution, which also reduces your legal fees dramatically. Call one of our attorneys today to set upyour first, free consultation.



If I’m arrested, will I go to jail?

No, probably not – in these kinds of cases, the usual course is for the police to arrest an accused person, take them through the booking process at the police station, and the release them with a citation that requires them to appear in court in the future.


If you are arrested and booked, you should consult a Summit Defense attorney as soon as possible after you are released from the police station, so we can begin to work on your case right away.


Is statutory rape a felony or misdemeanor?

In California, statutory rape can be dealt with as either a felony or a misdemeanor, depending on the age of the parties and other circumstances of the case. There are actually several different categories of statutory rape offenses, and in many cases the offense will be a ‘wobbler’, which means that the Prosecutor will determine whether it is dealt with as a felony or a misdemeanor.


For example, if the alleged offender is 20 years old and the alleged victim is a 17-year-old, the matter will be charged as a misdemeanor. On the other hand, if the alleged offender is 28 years old and the alleged victim is a 16-year-old, then it is up to the DA to consider the circumstances of the case and determine whether they will file the charge as a felony or a misdemeanor.


The penalties and consequences that result from being convicted of a felony can be quite serious. Further, whether or not you are facing a misdemeanor or a felony statutory rape charge, a conviction can still mean time in jail and may remain on your record for life. If you are charged with statutory rape, you need to contact Summit Defense Attorneys to discuss your options to reduce or dismiss the charges, and to fight for the best result possible.


What evidence will the Prosecutor use to try to prove a charge of statutory rape against me?

If you are facing a charge of statutory rape in California, the Prosecutor will need evidence to prove beyond reasonable doubt:


  1. that you had sexual intercourse with another person;
  2. that you and the other person were not married to each other at the time; and
  3. that the alleged victim was under 18 years of age at the time.


Depending on the exact nature of the charge against you, the Prosecutor may have to prove an additional element in relation to the particular ages of the offender and the victim, or the difference in age between the parties. This is because there are separate offenses:

  1. where the defendant was 21 or older, and the victim was under 16[1];
  2. where the victim was more than three years younger than the defendant[2]; and
  • where the victim was within three years of the defendant’s age[3].


Depending on which of those offenses is charged, the Prosecutor must prove the age of both of the parties, as required.


Sexual intercourse

It is essential in a statutory rape case for the Prosecutor to prove that the two people actually had sexual intercourse. To meet the legal definition of intercourse, any amount of penetration by the penis will be sufficient, and ejaculation is not required.[4]


Other kinds of sexual activity, however, do not fit this definition. So  if someone engaged in kissing, fondling, and even oral sex with a minor, they could not face a statutory rape charge (but they might face other child molestation charges, depending on how young the juvenile was). For example, if a man over 18 received a ‘blow job’ (oral sex) from his 17-year-old girlfriend, and then he fondled her vagina with his hands, he could not be charged with statutory rape for engaging in either of those sexual acts.


Consent is not an issue

Remember that consent is not an issue in statutory rape cases. Unlike the actual offense of rape – where the sexual intercourse is engaged in without the victim’s consent – this offense does not require proof of a lack of consent. This perhaps makes the use of the word ‘rape’ confusing, but it is important to note that these charges can arise even in the context of a dating relationship, and even where both parties have agreed to engage in intercourse.


Not married

This is an element that is usually not an issue – it is simply included in this section because there is no offense of statutory rape between two people who are legally married.


Alleged victim under 18 years

The Prosecutor has to prove the age of the victim at the time of the sexual intercourse. For all offenses they must prove that the victim was a minor at the time then, depending on the exact nature of the offense charged, they may have to prove the exact age of the alleged victim, and sometimes the exact age of the defendant as well. This is an element required in proving the offense itself, but it also vital to sentencing – as we discuss in the section on penalties below, the age of the parties will affect the sentence imposed.

A person is said to be one year older exactly one minute after midnight on their birthday.[5] So, the minute after someone turns 18, they can no longer be considered a victim of statutory rape.


The actual age of the parties is not usually an issue, but what is sometimes difficult for the Prosecutor to prove is the exact date on which the intercourse occurred – for example, if the allegation relates to an event that happened some time in the past, and the victim is not certain of the exact date, then it might be hard for the Prosecutor to prove the age of the parties at the time that they had sex.


Both of us are under 18 – is it still a crime to have sex?

While it is much less common for people under 18 to be charged with committing the offense of statutory rape, it does happen. It might not seem logical, but a minor can commit this offense – even though, technically, they would also be a ‘victim’ of statutory rape.


For example, imagine a case where two high school students are dating each other – a 16-year-old boy and a 14-year-old girl. The girl’s parents find out that she has had sex with her boyfriend, and report the matter to the police. The boy is then arrested and charged with statutory rape. He could be found guilty of the offense because he had sexual intercourse with someone under the age of 18 – even though he was also under 18 at the time.


In cases where the offenders are under 18 themselves, they will be dealt with in the juvenile court system. This usually involves less severe penalties, and more of a focus on rehabilitation – we explain more about the juvenile court system in California in this section.


Most Prosecutors will not make it a priority to prosecute these kinds of cases, and in many matters, we will be able to negotiate with the DA to have the charges dismissed or dealt with in such a way that a conviction is not recorded.


How is statutory rape different to child molestation?

Statutory rape and child molestation offenses both involve sexual activity with minors, but there are significant differences between the two types of offenses. Statutory rape cases generally cover those incidents where the parties have agreed to engage in sexual intercourse, but where at least one of the parties was too young to do so. Child molestation offenses, on the other hand, usually relate to incidents that are treated much more seriously by the law because one or more of the following factors was present:

  • the minor was quite young;
  • the minor did not agree to engage in the sexual behavior, or was forced or coerced into it;
  • the offender acted out of some perverse or unusual sexual attraction to children; and
  • the offender was sexually abusing the child.

We explain the various child sex and child molestation offenses in detail in this section.


In some cases, a person might be facing both statutory rape and child molestation charges. For example, in a recent case that we handled our client, a 21-year-old man, had a sexual encounter with a 15-year-old girl. The couple had sexual intercourse, and they also engaged in oral sex. The man was facing a charge of having unlawful sexual intercourse with the girl – a statutory rape charge – as well as a charge of oral copulation with a minor – a child molestation charge.


These charges exposed the man to very serious penalties. This is because, regardless of the statutory rape matter, the child molestation charge in this case is a felony, and carries a maximum penalty of three years in state prison. Moreover, a child molestation conviction would have meant that he had to register as a sex offender for the rest of his life. He was exposed to those severe consequences even though the girl agreed to engage in the sexual conduct with him – this is because consent is never an issue in these kinds of cases.


Fortunately, we were able to negotiate this matter with the DA and have the charge of oral copulation with a minor withdrawn. We were also able to urge the DA to speak to the girl, who confirmed our client’s instructions that she had agreed to the sex, and that the two of them had been dating for a short time. We persuaded the DA that our client was not a ‘sex offender’ and should not be treated in that way. In the circumstances, the DA filed the statutory rape charge as a misdemeanor. In the end, our client was able to serve a short sentence on probation, after which there was no permanent conviction was recorded. Importantly, he also avoided having to register as a sex offender.


Any allegation of child molestation is serious and involves potentially devastating consequences – if you are facing child molestation allegations you need an experienced Summit Defense lawyer on your side.


What defenses can I use to fight a statutory rape charge?

There are several defenses that can be used to fight a statutory rape charge, and an experienced criminal defense attorney will know which ones are most suited to your case. But you should always remember that early intervention is by far your best ‘defense’ – we know that it’s best to deal with any allegations before formal charges are filed, and getting results at that stage of a case is something that we specialize in.


Once formal charges have been filed, however, defending your matter can become more complex. Your best chance of success is to have Summit Defense Attorneys fighting for you – we know how the police and the prosecution work, and we know how to beat these kinds of charges. And even in cases where the evidence is strong, we are often successful in negotiating lesser charges or keeping matters off our client’s record altogether.


I didn’t do it!

You might have been falsely accused, or perhaps someone else did it, or maybe the evidence that the Prosecutor has is wrong or misleading – whatever the case, we can help. Summit Defense will investigate the case further, closely examine the evidence that the prosecution intend to use against you, and find any holes in their case. As always, the burden is on the prosecution to prove all of the elements in the case against you.


I didn’t know the person was a minor!

It is a defense to any statutory rape charge that you ‘reasonably and actually’ thought that the person you had sexual intercourse with was at least 18 years old. This is because the law accepts that there are often situations where you are not always able to tell that the person you are dealing with is a minor – perhaps because the person looks older than they actually are, or because of their behavior, or because of the context of your interaction – such as at a nightclub or a party.


This kind of defense is known as a ‘mistake of fact’. If a defendant raises this defense at trial, the jury will be told the following:


“ The defendant is not guilty of this crime if he or she reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that     the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.”[6]


As you can see, once this defense is raised, it is then the prosecution’s job to defeat it. But you do not have to wait until trial to raise this defense – if the person that you are alleged to have had sex with was someone that you thought was over 18, your Summit Defense attorney will collect all of the evidence necessary to establish this and raise the issue with the DA. We will urge them to accept that you have a good defense, and seek to have the charges dismissed.


In a case that Summit Defense Attorneys handled, our client was a 23-year-old man charged with statutory rape against a 16-year-old girl. The incident occurred at a college party on a Saturday night. Our client met the girl at the party, where they spoke for some time, were drinking beers, and were seen by several others at the party to be kissing before they went to a bedroom in the house together. In the bedroom, they had sex – which she had agreed to. The two then rejoined the party, and eventually went home separately. Our client had the girl’s phone number, and sent her several text messages the next day. The girl’s mother saw some of the text messages and eventually found out from her daughter that she had been to the party, and had sex with our client. She insisted on taking the matter to the police – against the wishes of the girl.


The girl’s statement to the police revealed that she had lied to her parents about staying at a friend’s house that night, and had gone to the party, where she met our client. She said that she had wanted to have sex with him, that he had not asked her age, and that she had not told him her age either.


When our client contacted us, he was devastated by the allegations. He told us that he didn’t know that the girl was under 18. He said that the girl had been wearing makeup, was at a college party, had been wearing a dress with high heels, had fully developed breasts and pubic hair, and had been drinking alcohol with him. As far as our client was aware, everyone at the party was a college student.


We reassured our client that he had a legitimate defense to the charges. All of the factors combined meant that it was more than reasonable for our client to believe that the girl was at least 18. However, the Prosecutor wanted to proceed with the matter. After further investigation, however, we were able to obtain photos of the girl with her friends from the party that night that showed her dressed up and looking much older than 16. That evidence, combined with her statement to the police, meant that we were eventually able to convince the DA to drop the charges against our client.


For these kinds of offenses, the law recognizes that it would be unfair to convict a person if they did not know the age of the other person, or if they were somehow misled or deceived about the age of the victim. But that does not mean that such a defense is easy to raise, or that it is easy to convince a Prosecutor or a jury of the merits of the defense. To raise the defense of mistake of age, you need a Summit Defense attorney who knows how to build this defense successfully.


But we didn’t have sex!

All charges of statutory rape require the Prosecutor to prove that actual sexual intercourse took place. This means that some degree of penetration by the penis is required – and any other kind of sexual activity, no matter what, is not enough to support this charge.


For example, consider a 17-year-old boy (who is almost 18) and a 19-year-old girl who are both college students and who are dating. They regularly stay at each others’ place overnight, and they engage in various kinds of intimate and sexual behavior – such as kissing, mutual masturbation, and oral sex. They do not, however, have intercourse because the girl is a Christian and wants to wait until she is married before she has sex. In the circumstances, the girl could not be charged with statutory rape because they have not actually had sexual intercourse.



I’m in a relationship with the person I had sex with – is that a defense?

No, it’s not a defense to a statutory rape charge. The only kind of relationship that prevents a charge of statutory rape being filed is where the parties are married.


As we have outlined above, consent is not an issue in statutory rape cases. In fact, many cases occur where both parties have agreed to have sex, and  in circumstances where the parties are dating and in a caring, loving relationship with each other. Regardless of that, it is still illegal to have sexual intercourse with someone under 18. The one time when the relationship of the parties would probably be taken into account, however, is in sentencing – generally the courts are more lenient when the parties are relatively close together in age, and are shown to be in a relationship.


If you have been accused of statutory rape in relation to someone that you are in a relationship with, you should speak to an attorney immediately – we have a great record of success in negotiating these matters with the DA, and having many cases dropped altogether.


The person consented to having sex with me – is that a defense?

No, it’s not a defense.


Consent is never a defense to a statutory rape charge – this is because the law regards people under 18 as being unable to consent to sex. So whether you were in a relationship with the person, or met them just once, that they consented to having sex with you is irrelevant.





What are the penalties for statutory rape offenses?

There are three categories of statutory rape charges, as follows:


  • where the defendant is no more than three years older than the person they had sex with, which is always a misdemeanour[7];
  • where the defendant is more than three years older than the other person, which is a ‘wobbler’ and can be charged as either a felony or a misdemeanour[8]; and
  • where the defendant is over 21, and the other person is under 16 – which is also a wobbler and can be charged as a felony or a misdemeanour, but where the penalties for a felony charge are more serious[9].


If the allegation that you are facing is a ‘wobbler’, the Prosecutor will decide whether the matter is dealt with as a felony or a misdemeanour. Their decision will generally depend on factors such as the age difference between the parties, any criminal history of the defendant, and any other issues that they believe affect the seriousness of the case. Your Summit Defense attorney will also make sure that they are involved in negotiations with the DA when they are making this decision, and will try to have your matter dealt with as a misdemeanour wherever possible.


If you are facing a misdemeanour statutory rape charge, the maximum penalties include:

  • summary probation;
  • a maximum of one year in county jail; and
  • a fine of up to $1,000.


If you are facing a felony statutory rape charge, the maximum penalties are much more serious and include:

  • probation with up to one year in county jail;
  • sixteen months to three years in state prison, or if you are convicted of the most serious felony charge where you are over 21 and the defendant is under 16, between two and four years in state prison; and
  • a fine of up to $10,000.


The law also provides for civil penalties to be awarded against defendants in statutory rape cases – which could expose you to further monetary penalties of between $2,000 and $25,000, depending on your age and the age of the alleged victim in your case.[10]


All of the penalties that are outlined here, however, are the maximum penalties that apply if you are convicted – it is important to know that the penalties imposed for statutory rape in California will differ based on the circumstances of the case, and whether or not you have previously been convicted of one of these offenses. Further, when sentencing, the judge will take into account various personal factors. The penalty that you receive – and whether or not a conviction ends up on your record – can vary widely, depending on the case you are able to put before the judge.


In any matter, the judge will consider the circumstances of each specific case before passing sentence. Some of the things that the judge will consider are known as aggravating and mitigating circumstances – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence. There are some common aggravating and mitigating factors that arise in statutory rape cases – for example, if the parties were in a relationship with each other and relatively close to each other in age, the court would consider those two factors as reducing the seriousness of the offense. On the other hand, if there was a significant age difference between the parties, then that might make the offense more serious. An experienced Summit Defense attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.


In fact, there are many cases where the expertise of one of our attorneys has resulted in a much less serious penalty being imposed. We may be able to negotiate a lesser charge with the Prosecutor, or persuade the judge to impose a much more lenient penalty in your case – for example, we are often successful in having our clients sentenced to a period of probation and, in some cases, ensuring that a conviction is not permanently recorded after that.


To put your best case forward, you need an expert attorney who is able to advise you and plan your strategy right from the start of your case through until the end. Early intervention is key, and our ultimate goal is always the complete dismissal of charges against you. Even if dismissal is not possible, we will be able to help you achieve the most lenient penalty for your case, and avoid jail time wherever possible.


What other consequences can occur as a result of being convicted of statutory rape?

At the moment there is no obligation to register as a sex offender if you are convicted of statutory rape.[11] However, there are other sex offenses involving minors that do require registration – such as child molestation offenses – and these can sometimes be charged alongside statutory rape. If you have been charged with any other sex or molestation offense involving someone under 18, you may have to register as a sex offender upon conviction. We explain sex offender registration requirements in detail in this section of our site.


It is also important to keep in mind that, if you are convicted of statutory rape, you will normally have a conviction on your record for the rest of your life. Many people are very concerned about having a conviction permanently on their record – and with good reason. A statutory rape conviction is often seen as the same as any other kind of sex crime, which obviously carries a very serious stigma. If a potential employer checks your record, for example, there is usually no opportunity to explain that the matter might have been quite minor, happened when you were very young, or  happened in relation to someone who agreed to have sex with you or whom you were dating at the time.


Most employers these days will run background checks on potential employees and there are also numerous private online sites where, for a small fee, you can get all kinds of information about a person’s background. This means that finding out someone’s criminal record – even events that happened ten or twenty years ago – is almost as simple as doing a quick Google search. To discuss how you can try to avoid having a conviction permanently recorded against you in a statutory rape matter, you should contact a Summit Defense attorney today.



[1] California Penal Code section 261.5(d).

[2] California Penal Code section 261.5(c).

[3] California Penal Code section 261.5(b).

[4] Judicial Council of California Criminal Jury Instructions, Instruction 1070.

[5] Judicial Council of California Criminal Jury Instructions, Instruction 1070.

[6] Judicial Council of California Criminal Jury Instructions, Instruction 1081.

[7] California Penal Code section 261.5(b).

[8] California Penal Code section 261.5(c).

[9] California Penal Code section 261.5(d).

[10] California Penal Code section 261.5(e).

[11] California Penal Code section 290.