STATUTORY RAPE
What is criminalized under section 261.5 of the California Penal Code - Statutory Rape?
California criminalizes sex with a minor under the age of 18. This is called “statutory rape.” Which is also referred to as “unlawful sex with a minor.”
* Be advised that it is crime under this section EVEN IF the minor consents to sex. Section 261.5 of the California Penal Code is a strict liability crime therefore even if the minor agrees to sexual relations you both will be fucked.
The term statutory rape is an antiquated term that is no longer used in criminal court. The modern more sexy language for statutory rape is unlawful sexual intercourse with a minor. The reason for the word jumble is to reflect a big difference between the crimes of rape of a minor, which is a crime classified as serious and violent (being forced into sex through force, fear, or threats), and sex with a minor that is unlawful (as a result of the minor's inability to consent to intercourse. Keep in mind that the term statutory rape is still the more common term outside of criminal court and because of this both terms are used here.
If you are charged with California Penal Code Section 261.5 - Statutory Rape please read the following.
What is the legal definition of California Penal Code Section 261.5 - Statutory Rape?
The elements of section 261.5 of the California Penal Code - Statutory Rape. The prosecutor must prove the following three elements beyond all reasonable doubt:
1) You had sex with another;
2) You and the alleged victim were not married to each other at the time;
3) The alleged victim was a minor at the time.
* Remember that there is no element of sex being forceful. California Penal Code Section 261.5 - Statutory Rape, does not even address the issue of consent. With traditional rape laws, the central issue is whether or not there was consent. The purpose of California Penal Code Section 261.5 - Statutory Rape, is to protect minors. The idea being that minors cannot lawfully consent to intercourse.
Let's look at each element so you can better understand your rights and responsibilities.
How Is Statutory Rape Different From Rape?
How is statutory rape different from rape? Pursuant to California Penal Codes section 261 a rape charge is brought when sexual intercourse occurs with another person under circumstances including (but not limited to) the following:
(1) where the mental/physical capacity of the victim means they can't consent to the sexual intercourse,
(2) where there is the use of force,
(3) where there is the use of drugs [think Bill Cosby] or threats [think Ron Jeremy].
Statutory rape is based on one thing: the age of the victim. Regardless of any other circumstances, statutory rape occurs if the victim is below the age of 18 and not married to the accused.
Actual Case #1 represented by Attorney Jeff Voll
In People v. G.R., the Norwalk District Attorney's Office issued an arrest warrant in late 2015 for my client for rape of a minor family member. After my client bonded out, I had a meeting with the Deputy D.A. assigned to the case who agreed to Not File Charges. Outcome: charges blocked.
Actual Case #2 represented by Attorney Jeff Voll
In People v. Mainor E. - Case No. VA103961, my client was accused of the very serious sex crime of rape of an ex-girlfriend of his. He was facing many years in State Prison along with mandatory sex registration for life. The Detective Investigating this case was a real piece of work; a real class A asshole. The "victim" walked into a Sheriff's Station and made allegations that my client drugged her and then had his way with her. When she woke up, she claims he made incriminating statements about raping her after he drugged her. At least that's what she told the police. So my client receives a phone call from the Detective to voluntarily go to the Sheriff's Station to discuss an incident involving my client. My client, not being street wise whatsoever, decides to drive over to the Sheriff's station for the tape recorded interview. The interview was conducted in Spanish. After about 3 hours of denying that he ever drugged or raped his ex-girlfriend my client "conceded" that it happened. The Detective asked no more questions and terminated the interview just before he slapped handcuffs on my client and had bail set at $100.000. I had the taped interview translated and transcribed (at L.A. County expense of $2,000.00) and I turned over a copy to the prosecutor who was sharp and ethical enough to see that this was NOT a "voluntary confession" like the Detective claimed in his report. Outcome: Case dismissed.
What must the Prosecutor prove for one to be found Guilty of California Penal Code Section 261.5 - Statutory Rape?
Keep in mind that the prosecution must always prove all the elements of a sexual crime beyond a reasonable doubt before you can be convicted at trial by a jury. The elements of section 266(i) of the California Penal Code - Pandering are as follows:
Sexual Intercourse
Sexual intercourse under Penal Code Section 261.5 - Statutory Rape differs from the conventional definition. California law will consider intercourse to have taken place if there was the slightest penetration. It doesn't matter that penetration was quick and/or minimal. It is also irrelevant whether one of the parties achieved orgasm or ejaculated. Therefore, as long as there is penetration, the accused may be charged under California Penal Code Section 261.5 - Statutory Rape.
Marriage to the alleged victim
A charge of violating section 261.5 of the California Penal Code, can never be imposed when the accused person was married to the minor at the time of sexual intercourse.
However, if the accused was previously married but not currently married to the alleged victim, then charges of violating California Penal Code Section 261.5 - Statutory Rape, will stick. It is also irrelevant if the alleged victim is or was married to another.
Therefore, the law only protects you from being charged under California Penal Code Section 261.5 - Statutory Rape, if you and the accused were married AT THE TIME of the sexual intercourse.
Minor
Statutory Minority means a person who has not yet reached the age of 18. Age is determined according to the birth date of the parties; Legally speaking a person is considered to age one year one minute after midnight on the day of their birth.
Question: Can a Minor be Charged as a Perpetrator?
In fact, adults are not the only ones who can be charged with California Penal Code Section 261.5 - Statutory Rape. Minors are also subject to being charged if they were under 18 years of age when the sex occurred. This is a difficult situation for prosecutors because the accused is also a victim in these scenarios. For this reason, prosecutors does not file these types of cases frequently.
The law regarding statutory rape, also known as unlawful sexual intercourse, is also codified at California Penal Code Sections 261.5.(a), 261.5(b), 261.5(c) and 261.5(d).
California Penal Code 261.5 crimes include:
California Penal Code section 261.5(b) is charged when the accused engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the accused is guilty of a misdemeanor..
California Penal Code section 261.5(c): is charged when the accused engages in an act of unlawful sexual intercourse with a minor who is more than three years older than the victim which can be charged as a misdemeanor or felony.
California Penal Code section 261.5(d): is charged when the accused who is 21 years of age or older who has unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony.
Note: California Law excludes minor victims from criminal liability for their participation in unlawful sexual intercourse.
What are the Penalties if Convicted of Violating California Penal Code Section 261.5 - Statutory Rape
Note: Incarceration related to unlawful sexual intercourse crimes sentenced as a felony or misdemeanor are served in county jail as opposed to state prison even if the sentence is longer than a year (California Penal Code section 1170(h).
Sex Offender Registration (California Penal Code section 290).
If the accused is convicted of statutory rape as a misdemeanor or felony, he or she is not ordinarily required to register as a sex offender. However, the defendant may be ordered to register as a sex offender for the length of the probationary term as a condition of probation. If a defendant is ordered to register as a sex offender as a condition of probation, the registration period is only as long as probation which is usually 3 to 5 years in California Penal Code section 261.5 cases. In very rare cases, where the Judge finds that the unlawful sexual intercourse was the result of an uncontrolled sexual deviant compulsion, the court must require the accused to register as a sex offender per California Penal Code section 290.006.
Immigration Consequences
Crimes Involving Moral Turpitude & The 3 Strikes Law: Statutory rape crimes are not considered crimes involving moral turpitude for Immigration consequences. Also, neither California Penal Code sections 261.5(c) nor 261.5(d) are considered strike offenses per California's Three Strikes Sentencing Law.
Civil Penalties
Per California Penal Code section 261.5(e)(1): an adult who engages in an act of sexual intercourse with a minor may be liable for civil penalties in the following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years his junior than the adult is liable for a civil fine not to exceed two thousand dollars.
(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years his junior than the adult is liable for a civil fine not to exceed five thousand dollars.
(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years his junior than the adult is liable for a civil fine not to exceed ten thousand dollars.
(D) An adult over 21 years old who engages in an act of unlawful sexual intercourse with a minor under 16 years old is liable for a civil fine not to exceed twenty-five thousand dollars.
Additional Penalties
In addition to a county jail sentence, if convicted of statutory rape under California Penal Code section 261.5(b), 261.5(c), or 261.5(d), the accused could face any or all of the following additional punishments: immigration consequences such as removal from the USA and denial of naturalization, criminal protective/stay away or criminal restraining orders, restitution (if the minor incurred out-of-pocket expenses as a result of the defendant's unlawful sexual conduct, such as costs of psychotherapy or medical treatment, HIV testing, potential civil lawsuits, probation or parole terms that may infringe on one's gun rights (felony convictions) and more.
Legal Defenses to California Penal Code section 261.5
Mistake of Fact
Any reasonable mistake by the accused as to the minor's age could possibly be a defense. This defense applies if the accused possessed a true reasonable belief that the minor was not under eighteen years of age at the time of the sexual intercourse.
Time barred
Statute of Limitations, also known as the legal time limit within which the prosecutor may file criminal charges against the accused in a California Penal Code section 261.5 case. The statute of limitations is three years from the date of the alleged crime for both felony and misdemeanors in statutory rape 261.5 cases.
No Penetration
It is a complete defense to a violation of California Penal Code section 261.5 - unlawful sexual intercourse, that the accused did not penetrate the victim's vagina with his penis. But remember that penetration can be very slight, and neither ejaculation, nor DNA evidence, is required to prove penetration.
Police Entrapment
This defense is available if the defendant's attorney can prove two separate facts. First, attorney has to prove that law enforcement officers acted in a coercive manner AND Secondly, the lawyer has to prove that his client acted unlawfully due to the far reaching methods of the police. Typically, the defense of police entrapment is available when a defendant is arrested as a result of an undercover police operation. The most common undercover police operation in cases involving Child Pornography involve online chat rooms.
False Allegations/Impeachment of Testimony or statements reported by alleged victim
It is not uncommon for defendants to face false allegations under California Penal Code Section 261 - Rape. There have been many cases where work associates, in order to get someone they do not get along with fired or family members involved in divorce proceedings have made false allegations to use the criminal justice system to get someone caught up. This is especially true with ex-spouses trying to gain an advantage in future divorce or custody hearings. In these types of cases, your Attorney Jeff Voll may be able to get the charges dismissed or a Not Guilty verdict at trial if he can prove that the complaining witness was a liar, thief, coward rat informant like Jefferson Dee Martin. In situations of false accusations, it is important for the defense to gather their own arsenal of evidence and not solely rely on the allegations offered by the police and prosecutors. Attorney Jeff Voll will hire a private investigator to interview any and all witnesses to find weaknesses or inconsistencies in the prosecution's case. Attorney Jeff Voll will subpoena phone records and text messages, re-analyze DNA samples, and even have the accused submit to a private polygraph examination. What is key in these types of cases is to gather an arsenal of evidence so that it is difficult, if not impossible, for the prosecution to prove the charges beyond a reasonable doubt.
Marriage to the alleged victim
A charge of violating section 261.5 of the California Penal Code, can never be imposed when the accused person was married to the minor at the time of sexual intercourse.
However, if the accused was previously married but not currently married to the alleged victim, then charges of violating California Penal Code Section 261.5 - Statutory Rape, will stick. It is also irrelevant if the alleged victim is or was married to another.
Therefore, the law only protects you from being charged under California Penal Code Section 261.5 - Statutory Rape, if you and the accused were married AT THE TIME of the sexual intercourse.
Minor at time of the offense?
Statutory Minority means a person who has not yet reached the age of 18. Age is determined according to the birth date of the parties; Legally speaking a person is considered to age one year one minute after midnight on the day of their birth.
Coerced Confessions
If the police coerced a "confession" then any prosecutor with a heart will see that this type of "case" will never reach a conviction due to the brow beating by the blue meanie in question. See below:
Actual Case #2 represented by Attorney Jeff Voll
In People v. Mainor E. - Case No. VA103961, my client was accused of the very serious sex crime of rape of an ex-girlfriend of his. He was facing many years in State Prison along with mandatory sex registration for life. The Detective Investigating this case was a real piece of work; a real class A asshole. The "victim" walked into a Sheriff's Station and made allegations that my client drugged her and then had his way with her. When she woke up, she claims he made incriminating statements about raping her after he drugged her. At least that's what she told the police. So my client receives a phone call from the Detective to voluntarily go to the Sheriff's Station to discuss an incident involving my client. My client, not being street wise whatsoever, decides to drive over to the Sheriff's station for the tape recorded interview. The interview was conducted in Spanish. After about 3 hours of denying that he ever drugged or raped his ex-girlfriend my client "conceded" that it happened. The Detective asked no more questions and terminated the interview just before he slapped handcuffs on my client and had bail set at $100.000. I had the taped interview translated and transcribed (at L.A. County expense of $2,000.00) and I turned over a copy to the prosecutor who was sharp and ethical enough to see that this was NOT a "voluntary confession" like the Detective claimed in his report. Outcome: Case dismissed.
How I Can Help - Call me at 323-467-6400
Do you have any questions or concerns about a situation that may involve statutory rape? If you or someone you know has been accused of statutory rape or "unlawful sexual intercourse," you should seek the assistance of an attorney right away. This can be a very serious charge, and having an attorney to represent you can make all the difference in the outcome. The experienced Los Angeles-based criminal defense law firm of Jeff Voll may offer exactly the help you need. If you're facing a statutory rape situation, don't hesitate to call to receive a free consultation and case evaluation. When you hire the Los Angeles-based attorney Jeff Voll to represent you, you can be assured that your case is in good hands. You will be hiring an experienced attorney who specializes in criminal law, including statutory rape cases, and who has handled over 8000 criminal law cases. You will be hiring an attorney who knows the process and knows the system. P J Voll has the experience, training and resources to help address your problem. Call Now for your FREE consultation and case evaluation: 323-467-6400. Contact us today and we will put our knowledge and experience to work for you.
Remember that Attorney Jeff Voll is the ONLY California criminal defense firm that can truthfully state he achieved over 100 case dismissals in one 12 month period. Look no further for an attorney to represent you or a loved one.
