Statutory Rape

HOW DOES THE PROSECUTOR PROVE YOU GUILTY OF STATURY RAPE

Statutory rape under Penal Code section 261.5 is sexual intercourse with a person under the age of 18.  In order to convict you of statutory rape, the prosecutor must prove beyond a reasonable doubt the following:  1) that you had sexual intercourse with another person; 2) you were not married to this person at the time of the act; and 3) the alleged victim was under the age of 18 at the time of the offense.  In contrast to ordinary rape, statutory rape can arise out of consensual sexual intercourse and even in situations where the minor initiated the sex.  In other words, the prosecutor need not prove that you used force or that the alleged victim did not consent to the intercourse.

What makes statutory rape a particularly insidious charge is that it can, and often does, arise out of otherwise loving relationships.  For example, John and Jill meet at their neighborhood church.  John is 20 years old and Jill is 16.  Soon, a romantic relationship develops and the two start having sex.  Jill’s mother discovers this fact, and reports John to the police.  John gets arrested and prosecuted for statutory rape, even though he and Jill genuinely fell in love.

HOW DOES STATURY RAPE DIFFER FROM RAPE?

Under Penal Code section 261, rape is sexual intercourse accomplished against the alleged victim’s will or without his or her consent.  Whether or not the victim had the capacity to and/or gave consent is therefore a key element of rape.  Statutory rape, however, is based on two factors only: 1) the age of the parties and 2) whether the accused knew, or reasonably should have known, of the alleged age of the victim.

PENALTIES FOR STATUTORY RAPE

Statutory rape under Penal Code section 261.5 is a wobbler, which means that it is charged as either a felony or a misdemeanor depending mostly on the age of the parties.  If you are not more than three years older than the alleged victim, the offense is a misdemeanor.  If you are more than three years older than the alleged victim, then the offense may be charged as a misdemeanor or a felony.  If you are 21 years or older and the alleged victim is under 16 at the time of the intercourse, and the offense is charged as a felony, then you are subject to harsher felony penalties.  For example, 19-year-old John has sex with 17-year-old Jill.  Because John is only two years older than Jill, then John will be charged with a misdemeanor.  Now imagine that John has sex with 15-year-old Jane.  Because John is four years older than Jane, John would be charged with either a felony or a misdemeanor depending on John’s criminal history and the specific facts of the case.

If you are charged with a misdemeanor statutory rape, you will be subject to informal probation, a maximum one-year of county jail, and a maximum $1000 fine.  If you are charged with a felony statutory rape, you face either informal or formal probation with up to one year county jail, or 16 months, 2 years, or 3 years in custody.  If at the time of the offense you were 21 years or older and the alleged victim was under 16 years old, then you face an increased penalty of 2 years, 3 years, or 4 years in custody and up to $10, 000 in fines.

Do I need to register as a sex offender if I am convicted of statutory rape?

The answer is no.  Under current California laws, a conviction for statutory rape does not subject you to registration as a sex/

DEFENSES TO STATUTORY RAPE

  • You actually and reasonably believed that the person with whom you had sexual intercourse was over the age of 18

If you actually believed that the alleged victim was over the age of 18, and so would a reasonable person in your situation, then you cannot be found guilty of statutory rape.  Evidence that might support this defense include the alleged victim’s expressed claim that she is over the age of 18, the way she dressed and her overall appearance, and where you met her.  For example, 25 year old John meets 16 year old Jill at a gentlemen’s club that requires all patrons to present identification showing that they are 21 years or older.  Jill is wearing heavy make-up, high heels, and objectively looks at least five years older than her real age.  John and Jill later leave the bar and have sex.  John can argue that, based on Jill’s appearance and the fact that she was at a gentlemen’s bar, he genuinely and reasonably believed that she was 21 years or older.

HOW CAN NEGIN YAMINI HELP YOU

Actual case:  In people v. A. H. (client’s name and case number was not reported per client’s specific request), the defendant, Mr. H, engaged in multiple instances of sexual instances with a young woman whom he had met in his neighborhood church.  At the time of the acts, Mr. H was 25 years old, and the young woman was 15 years old.  Mr. H knew of her age, and the two had a two-year long relationship.  The sex was entirely consensual and in fact initiated at first by the young woman, who was much more sexually experienced and sophisticated than the socially inept Mr. H.  When the young woman’s mother discovered that her daughter was having sex with Mr. H, she reported Mr. H to the police.  Mr. H was arrested and prosecuted for felony statutory rape.  Because of the multiple and frequent instances of sexual intercourse reported to the police by the young woman, the prosecution’s initial offer for Mr. H was an incarceration term of 3 years.  Mr. H’s family hired Negin to represent him.  Negin thoroughly investigated the history of the couple’s relationship as well as the alleged victim’s background and upbringing.  She presented to the prosecution the reality that Mr. H was far less experienced and vulnerable than his sexually precocious girlfriend who had in fact initiated the sex between the couple.  Though Mr. H’s sexual past with respect to the alleged victim’s was not a defense to the actual crime, it was a powerful mitigating factor.  This mitigating factor, along with others that Negin artfully presented, resulted in a sentence of probation and no jail for Mr. H. 

Negin’s Strategy:  Negin will thoroughly and unabashedly explore any and all defenses that apply to your case. She will take the time and effort to meticulously research and garner and and all facts and circumstances that the prosecution might otherwise overlook but that might determine the specific outcome of your case.

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