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Orange County Bar Association

“Unlawful Intercourse” and the Law in California

Law Offices of William W. Bruzzo
California Penal code
Volumes of the Thomson West annotated version of the California Penal Code, the codification of criminal law in the state of California (Photo credit: Wikipedia)

In the state of California sex between one individual and a person who is under the age of 18 years is known as ‘Unlawful Intercourse’ under Penal Code section 261.5. This crime is commonly known as ‘statutory rape.’ Presumably, that description came about because regardless of whether the underage person gives consent, it is still a violation of the law to have intercourse with them. This law only applies to actual intercourse and not oral sex or anal sex. The laws regarding oral and anal sex with underage individuals are much harsher, almost always felonies and usually require sex registration. A conviction under Penal Code Section 261.5 does not require sex registration.

Sex between someone over the age of 18 and someone under the age of 18 where there is three years or less of age difference may be filed as a misdemeanor under Penal Code section 261.5(b); if there is more than a three year age difference the crime may be filed as a misdemeanor or a felony (Penal Code Section 261.5(c)). If the Defendant is 21 years or older and the minor is under 16 then the maximum punishment may be four years in state prison although such a long sentence is very unlikely (Penal Code Section 261.5(d).

The most perplexing issue surrounding Penal Code Section 261.5 for most people is that although it prohibits intercourse with a minor it does not require registration as a sex offender. This seems inconsistent with other Penal Code Sections that require life time sex registration for oral sex between an individual and someone who is underage.

More than likely this inconsistency arose from puritanical notions on sex which found oral sex deviant. Legally however, the California Supreme court saw this legal inconsistency as being a violation of the equal protection clause of the constitution and determined that oral sex with someone who was 16 or older should not be registerable under Penal Code Section 288. (See People v. Hofsheier (2006) Regardless, violations of Penal Code Section 261.5 are not registerable and that fact has led to other penal code section violations not being registerable.

As a practical matter, it is possible for two individuals in high school engaging in consensual intercourse that result in the one who is 18 being charged with Penal Code Section 261.5. For example, if an 18 years old high school senior has sex with his 17 or 16 year old girlfriend he can be charged with this crime. It is rare when this occurs and of course the District Attorney has discretion whether or not to file the matter. Usually when a filing does occur in this instance it is because the parents of the younger individual wish to discourage the relationship or the younger female has become pregnant and the parents are outraged. Often times, it is the angry parents who spur the District Attorney into action. Similarly though, parents of the younger person may be persuaded to ask the District Attorney for leniency since few realize that these charges can result in jail. Other times, the Defendant agreeing to a paternity test, which will then result in support payments, may soothe a parent up-in-arms over the unexpected pregnancy of the minor.

Attorney Will Bruzzo has successfully handled many Penal Code Section 261.5 cases to include complete dismissals.

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