Rape vs. Statutory Rape: The Difference in California

Legally speaking, the difference between rape and statutory rape is very important. While both are serious criminal offenses under California law, they are proved with very different elements and carry very different penalties. The aim of this article is to help illustrate the key differences between rape and statutory rape under California law, however, it is important to note that no two criminal cases are alike and that anyone who has been charged with either crime should immediately consult with a San Bernardino sex crime lawyer for case specific information.

Rape Defined

In a nutshell, section 261 of the California Penal Code defines the criminal offense of rape as nonconsensual sexual intercourse accomplished (a) via threats, force, duress, or fraud, or (b) with a victim who is unconscious or incapable of consenting. Therefore, ALL of the following examples of nonconsensual sex constitute rape under California law:

  • Example #1: A man assaults a woman in a dark alley and physically forces himself on her while she tries to resist him.
  • Example #2: A police officer pulls over a driver and threatens to arrest her unless she has sex with him, she decides to acquiesce.
  • Example #3: A woman has sex with a man at a party after he passes out from drinking too much.

It should be noted that rape is a bit of an umbrella term as California law recognizes several different types of rape including spousal rape, date rape, and statutory rape.

Statutory Rape Defined

Statutory rape occurs in California when someone engages in sexual intercourse with a minor (i.e. an individual under the age of 18). Section 261.5 of the California Penal Code. Having sex with a minor constitutes statutory rape because minors are legally incapable of consenting to sexual intercourse by virtue of their age. Therefore, an adult can commit statutory rape even if the minor verbally agreed to have sex with them. Even if the minor was the one who pursued the adult, the adult can be charged with statutory rape in California. Some examples of statutory rape include:

  • Example #1: A 40-year-old college professor has consensual sex with a 17-year-old student whom he suspects is underage.
  • Example #2: A 19-year-old college student has consensual sex with her 17-year-old boyfriend after his senior prom.
  • Example #3: Two 16-year-old high school sweethearts decide to lose their virginities together.

Do any of these examples of statutory rape surprise you? Perhaps the last one in which statutory rape is committed by two minors who freely decide to lose their virginities together? Most people are surprised to learn that minors can commit statutory rape in California. This is possible because California’s criminal code does not have a “Romeo and Juliet provision”.

Some states have a Romeo and Juliet provision (sometimes referred to as a close-in-age exemption) that prevents individuals from being charged with statutory rape if the sexual intercourse at issue was consensual and the participants are close in age to each other. Because California does not have such a provision the college student in example #2 who has consensual sex with her underage boyfriend can be charged with statutory rape. Furthermore, both of the underage high school sweethearts who decided to lose their virginities together in example #3 can also be prosecuted for statutory rape.

Possible Penalties for a Rape Conviction in San Bernardino

Rape is a felony criminal offense that can be severely punished under California law. Generally speaking, a California rape conviction carries with it a three, six, or eight-year prison sentence for a first-time offender. However, the court will weigh relevant mitigating and aggravating factors when sentencing a convicted rapist and may determine that either a shorter or a longer stint in prison is appropriate.

Interestingly, statutory rape can be charged as either a felony or as a misdemeanor offense in California. Generally, the age difference between the defendant and the minor will determine whether the crime is prosecuted as a felony or a misdemeanor, but the totality of the circumstances will also be considered. A misdemeanor statutory rape conviction is punishable by up to one year in county jail while a felony statutory rape conviction is generally punishable by up to four years in prison.

San Bernardino Rape Lawyer Legal Defenses

Each case is unique, so if you have been charged with either rape or statutory rape it is critical that you retain the services of an experienced San Bernardino sex crimes attorney who can build a tailormade defense given your individual circumstances. With that said, some of the most commonly asserted defenses to these two sex crimes are outlined below.

Commonly asserted rape defenses:

  1. No sexual intercourse actually took place.
  2. The evidence is insufficient to prove the prosecution’s case beyond a reasonable doubt.
  3. The defendant honestly believed that the alleged victim freely consented to the intercourse, and this belief was reasonable.
  4. The defendant is the victim of mistaken identity, someone else raped the victim.

Commonly asserted statutory rape defenses:

  1. No actual sexual intercourse took place.
  2. You honestly believed that the minor was over 18, and this belief was reasonable.

Key Takeaway Points

  1. Rape is having sexual intercourse with someone without their legal consent (regardless of the age of the victim), whereas statutory rape occurs when someone has sexual intercourse with a minor (i.e. someone who is under the age of 18).
  2. Minors can not legally consent to sexual intercourse due to their age.
  3. Rape does not always have to involve the use of physical force. If the victim submitted to the sexual encounter due to duress, fraud, or a threat then they have not freely consented and the intercourse constitutes rape.
  4. Both men and women can be rape (or statutory rape) victims.

Need a Criminal Defense Lawyer in San Bernardino?

To speak with a knowledgeable San Bernardino sex crimes attorney, call My Rights Law Group – Criminal & DUI Attorneys today at (909) 361-6767. If you’ve been accused of rape, statutory rape, or some other sex crime in San Bernardino California they are here to help. With offices throughout Southern California they employ a team of well-respected criminal defense attorneys who have the knowledge and skills necessary to secure the best possible outcome for each of their clients. To find out exactly what their firm can do for you contact them today.