California Statutory Rape Laws

Statutory rape laws in California exist to protect children from sexual abuse. All sex between an adult and a minor is illegal in California. Further, statutory rape is sexual assault and child abuse

If you experienced sexual activity with an adult as a minor, or if your child has had such an experience, you have the right to bring a civil suit for statutory rape. The team of sexual abuse attorneys at Boucher LLP are dedicated to helping sexual assault survivors navigate the legal system and seek redress for their pain and suffering.

What Are California State Laws on Statutory Rape? 

California Penal Code Section 261.5 makes it unlawful for a person over 18 to have sexual intercourse with a minor. Unlike forcible rape and other sex crimes, consent is not a defense to statutory rape. California defines “consent” as positive cooperation in the act or an attitude showing an exercise of free will. The individual must act freely and voluntarily and be aware of the nature of the act or transaction at hand. However, the California State Legislature has concluded that a person under 18 cannot give informed consent because of their age. Therefore, sex between an adult and a minor cannot, by legal definition, be consensual.

Exceptions to Statutory Rape in California Laws

Statutory rape makes all sexual activity between an adult and a minor illegal, with limited exceptions.

Romeo and Juliet Laws

California Statutory Rape Laws

Some states have so-called “Romeo and Juliet laws” that allow sexual intercourse between two minors or between a minor and an adult who is close in age to the minor. California does not have such an exception. However, under California laws, statutory rape is a misdemeanor or felony crime, depending on the age of the perpetrator and the victim. Accordingly, sexual intercourse with a minor:

  • Less than three years younger is a misdemeanor;
  • More than three years younger is a misdemeanor OR a felony;
  • Under 16, when the perpetrator is 21 or older, is a misdemeanor OR a felony.

The criminal punishment for statutory rape ranges from one-year imprisonment and a $2,000 fine to up to four years imprisonment and a $25,000 fine.

Marital Exception

California’s statutory rape law allows sexual intercourse with a minor to whom the person is legally married. A minor may be married in California with parental consent and a court order. While marriage is one way for a couple to avoid statutory rape laws, there are many reasons it is not a good idea. The U.S. Agency for International Development reports that approximately 14.2 million girls are married every year before they reach the age of 18. Marrying early impacts a woman’s agency and education, increases maternal mortality rates, and intensifies discrimination and violence.  These are among the reasons advocates in California and across the country are working to change state laws allowing child marriage. Additionally, the spousal exception to statutory rape is not retroactive, meaning, if there was sexual intercourse with a minor before marriage to that minor, the marriage does not absolve the adult of the crime of statutory rape. 

Sexual Intercourse Between Minors

Juveniles can commit child abuse, and California’s statutory rape law does not except minors who sexually abuse other minors. However, some acts committed by a minor will qualify as “reportable child abuse,” while others will not. California law states that “a mutual affray between minors” is not reportable child abuse. Because California law does not define “mutual affray,” the reporter must decide whether to report based on the circumstances. Child Protective Services and law enforcement may also judge the seriousness of incidents between minors. For example, a fight between two minors close in age and maturity may not be reportable abuse if bullying is not the cause. On the other hand, it is abuse if one child is clearly the aggressor and the other is being victimized.  The same holds true with respect to  sexual activity between minors.

Statutory Rape Reporting Laws in California

The CDC defines sexual activity between an adult and a minor who is not developmentally prepared for and cannot give consent as child abuse. When an adult uses their authority to involve a child in any sexual activity, it is child sexual abuse. In California, the Child Abuse and Neglect Reporting Act (CANRA), has defined certain categories of adults, typically those who regularly interact with children, to be mandatory reporters. Mandatory reporters are required by law to report child abuse, including sexual abuse. Mandatory reporters include

  • Teachers and school employees; 
  • Daycare workers;
  • Employees at a youth center, youth recreation program, or youth organization;
  • Clergy members;
  • Physicians and other medical professionals;
  • Therapists and counselors;
  • Police, firefighters, and EMTs;
  • Athletic coaches;
  • Foster parents;
  • Human resource employees; and 
  • Employers and supervisors of minors in the workplace.

Under the Act, mandatory reporters must report suspected statutory rape only if it falls under subdivision (d) of Section 261.5. Thus, a mandated reporter must report sexual intercourse between a person 21 years or older and a minor under 16. They must also report sexual intercourse between a minor under 14 years old and a partner 14 years old or older under a different law, Penal Code Section 288, which prohibits lewd or lascivious acts upon a child.

However, mandatory reporters do not have to report voluntary intercourse by a minor when there is no indication of neglect, abuse, or duress and:

  • One person is under the age of 14, and their partner is under the age of 14.
  • One person is 14 or 15 years old, and their partner is at least 14 but under 21.
  • One person is 16 or older, and their partner is also 16 or older.

Further, if a clergy member learns of a statutory rape during a “penitential communication,” they do not have a duty to report it. Penitential communication includes information divulged in confidence as part of a sacramental confession or similar religious practice. However, clergy members must report abuse if they hear about it in another way. It is a crime for a mandated reporter not to report abuse when the law requires them to do so.

Boucher LLP: Breaking Down California Statutory Rape Laws to Help Survivors 

Statutory rape laws aim to stop adults from taking advantage of a person unable to give consent and causing life-long harm to a child. An adult who grooms and takes advantage of a child violates the law and commits sexual violence. If you are a survivor of statutory rape, you may experience long-term psychological, emotional, and physical harm. You may feel guilt, shame, self-blame, and low self-esteem or self-worth. Engaging in sexual intercourse before one is  ready can affect an individual’s adult relationships and intimacy.

Sexual assault is never your fault. You no longer have to suffer in silence. The attorneys at Boucher LLP are here to listen and support you in reclaiming control of your life. While a successful lawsuit will not replace the lost time and trust, it can help you find closure. We can help you bring your abuser to justice and hold accountable the institutions and employers who failed to protect you. 

Standing up and speaking out may feel overwhelming. However, many of our clients have told us that doing so has helped them feel at peace and move forward with their lives. Contact an attorney at Boucher LLP today to discover your options.