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California Penal Code 261.5 PC - Statutory Rape Law


Los Angeles Criminal Defense LawyerUnder Penal Code Section 261.5 PC in California, engaging in sexual intercourse with an individual under the age of 18 who is not one’s spouse is considered statutory rape, regardless of whether the minor willingly participates or initiates the activity. This is because minors are legally incapable of giving consent to engage in sexual acts. The California age of consent is 18 years old, and any sexual activity with someone below that age is considered a violation of the law.

Penal code 261.5 pc states that: (a)Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b)Any person who 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 perpetrator, is guilty of a misdemeanor.

(c)Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(d)Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(b) In imposing a restitution fine pursuant to this section, the court shall consider the defendant’s ability to pay the fine.


Our law firm often encounters various questions when individuals are under criminal investigation or have been arrested for violating Penal Code 261.5 PC. For example, common inquiries include:

  • What if the defendant was also under 18 at the time?
  • What if both parties were very close in age, such as less than a year apart?
  • What if both parties were in a committed long-term relationship?

Although these questions are relevant, it is important to note that none of these factors will impact an individual’s criminal liability under the PC 261.5 statutory rape statute in California. It’s worth mentioning that several states have enacted safe harbor provisions, often referred to as “Romeo and Juliet Laws,” which allow individuals in close age relationships to engage in sexual activity lawfully if they had a committed relationship before one party turns 18. However, it is crucial to understand that the state of California has not enacted any such safe harbor provision.


To obtain a conviction under California Penal Code 261.5 for statutory rape, the prosecution must prove the following three elements:

  • The defendant engaged in sexual intercourse with another person. It is important to note that even the slightest form of sexual penetration constitutes sexual intercourse, regardless of ejaculation.
  • The defendant and the alleged victim were not married to each other at the time of the offense.
  • The alleged victim was under 18 years old at the time of the offense.

There is no requirement for the prosecution to prove the use of force or the absence of consent by the alleged victim. This differs from cases of ordinary rape in California, where lack of consent is a key element of the crime.

Many cases involving Penal Code 261.5 arise from relationships involving a mature teenager and are not characterized by force or lack of consent. The age of the parties involved is the determining factor in whether charges are filed.

It is important to note that under California law, an individual is considered one year older at 12:01am on their birthday. In cases where both parties involved are under 18, they can both be charged with statutory rape, even though they may technically also be considered “victims.” If both parties are minors, the case will likely be tried in the California juvenile court system.

Regarding the statute of limitations for statutory rape charges in California, the limitations are as follows:

  • One year for misdemeanor charges.
  • Three years for felony charges.


Statutory rape is considered a “wobbler” offense, which means it can be charged as either a misdemeanor or a felony, depending on certain circumstances. Here are the key points regarding the charges and penalties:

  • If the age difference between the accused and the alleged victim is no more than 3 years, violating PC 261.5 is always treated as a misdemeanor.
  • If the age difference is more than 3 years, charges can be brought as either a misdemeanor or a felony.
  • If the accused is 21 or older and the alleged victim is under 16 at the time of the intercourse, charges can be filed as either a misdemeanor or a felony.
  • The decision to charge misdemeanor or felony depends on factors such as the defendant’s criminal history and the specific details of the case.

Penalties for misdemeanor statutory rape can include informal probation, a maximum 1-year county jail sentence, and fines of up to $1,000.

On the other hand, felony statutory rape can result in probation with up to 1 year in county jail or 16 months, 2 years, or 3 years in custody. If the accused is 21 or older and the victim was under 16, the potential sentence is 2 years, 3 years, or 4 years. Additionally, fines of up to $10,000 can be imposed.


In some cases, the judge may allow the defendant to serve a “split sentence” where part of the time is fulfilled through house arrest or work release. If probation is granted, compliance with the terms can result in no jail time.


Apart from the penalties mentioned earlier, individuals who are 18 years or older and found guilty of statutory rape may also face civil penalties, which are non-criminal fines. The maximum fines for these civil penalties are:

  • $2,000 if the minor is less than two years younger than the defendant
  • $5,000 if the minor is at least two years younger
  • $10,000 if the minor is at least three years younger
  • $25,000 if the minor was under 16 and the defendant was over 21 years old.

It’s important to note that while statutory rape is a felony, it is not a “strike offense” under California’s Three Strikes Law. However, a conviction under PC 261.5 can lead to the loss of firearm rights for life.


In California, a statutory rape conviction typically does not require you to register as a sex offender. However, there may be exceptions if the judge determines that the offense was a result of an uncontrollable sexual compulsion, although this is very rare. In certain cases, you may be required to register as a sex offender while on probation, but this requirement usually ends when probation is completed, which generally lasts between 3 to 5 years.


Here are the effective defenses that can be utilized when facing statutory rape charges in California:

  • Honest and Reasonable Belief of Age: If the defendant honestly and reasonably believed that the alleged victim was 18 or older at the time of the sexual encounter, they cannot be convicted under this section. Evidence supporting this defense may include statements from the alleged victim claiming to be over 18, their attire and appearance, and the location of the meeting (such as an adult-only venue). For example, if the defendant met the minor at an adult-only venue like a bar, it could be argued that they had a reasonable belief that the minor was over 18.
  • Lack of Sexual Intercourse: If the prosecution cannot prove beyond a reasonable doubt that there was penetration of a vagina by a penis, then the statutory rape charge does not hold. However, it’s important to note that if the prosecutors fail to prove statutory rape, they may pursue other sex-related charges depending on the circumstances of the case.
  • False Accusations: Similar to other sex crimes in California, statutory rape charges are susceptible to false accusations driven by motivations such as anger, jealousy, revenge, or even parental influence. In such cases, the defense can comb through the accuser’s communications (texts, voicemails, etc.) to identify inconsistencies and motivations to lie. Presenting this evidence to the prosecutor can lead to the recognition that the charges are baseless, potentially resulting in their dismissal.

It is important to note that unlike rape charges, consent is not a defense in statutory rape cases, as minors are not legally able to give consent.


Statutory rape can be considered a crime involving moral turpitude, especially based on the age of the minor involved in the case. Due to the potential classification of statutory rape as a crime involving moral turpitude, non-citizens convicted of this offense may face severe immigration consequences, including the risk of deportation. It is crucial for non-citizens facing statutory rape charges to be aware of the potential immigration implications and seek legal counsel to understand and address these consequences effectively. If you or someone you know is charged with this crime, it is strongly advisable that you also consult with an immigration lawyer. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.


There are certain felony offenses that cannot be expunged in California. These include serious sex offenses, particularly those committed against children. One example is the offense outlined in Penal Code 261.5(d) PC, which specifically addresses statutory rape in California. This provision prohibits sexual intercourse between individuals who are 21 years or older and individuals who are younger than 16. Due to the serious nature of these offenses, they are not eligible for expungement under California law.


  • Penal Code 288 PC – lewd or lascivious acts with a child
  • Penal Code 261 PC – rape
  • Penal Code 264.1 PC – gang rape
  • Penal Code 286 PC – sodomy
  • Penal Code 647.6 PC – annoying or molesting a child


Statutory rape is a severe offense that can cause imprisonment even for consensual actions. The complexity of these cases necessitates the need for an experienced attorney who can act quickly to prevent criminal charges from being filed. If you or a loved one has been arrested or charged with a violation of California’s Penal Code 261.6 PC, which addresses statutory rape cases, you can contact our skilled criminal defense lawyer Cyrus Tabibnia, who will examine the case thoroughly.

Mr. Tabibnia, with more than 14 years of experience, is highly respected in the criminal justice system. He is able to intervene before charges are filed and work with law enforcement and prosecutors in what is known as pre-filing intervention to establish an agreement that avoids formal charges being brought against you. For more information about statutory rape, and to schedule your free consultation, call 866-713-2159


Cyrus Tabibnia

Cyrus Tabibnia

Cyrus Tabibnia, also known as Shahrooz Tabibnia, is a criminal defense lawyer in Los Angeles, California. With a law degree from Loyola Law School, Los Angeles, he has been practicing law since 2005 and holds license #237348. With over 18 years of experience, Cyrus specializes in various misdemeanor and felony criminal Law including Domestic Violence, Theft Crime, Sex crime, DUI & DWI, Personal Injury, Employment Law, and Cannabis & Marijuana Drugs Law. Being bilingual in English, Persian, and Spanish enables him to effectively communicate with a diverse range of clients. From 2014 to 2018, he served as a board member of the Iranian American Bar Association. An expungement attorney in Los Angeles who can assist you in clearing your criminal record in the state of California.

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