Having Sex With A Minor
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Having Sex With A Minor
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December 29, 2017 By Stephen Klarich
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November 14, 2017 By Stephen Klarich
November 10, 2014 By Stephen Klarich
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Under California Penal Code Section 261.5 , it is illegal to have sexual intercourse with a person who is under the age of 18 and is not your spouse. Let’s further explore the criminal act of having sex with a minor.
When most people think of “rape,” they think of sexual intercourse against the will of the victim accomplished by violence, force or fear. However, that is not always true in statutory rape cases.
Statutory rape can occur when two people agree to engage in sex, but one or both of the participants are under the age of 18. California law does not allow a person under the age of 18 to legally provide consent to sex. Therefore, any act of sexual intercourse between two persons who are not married when one or more of the participants is under the age of 18 is always a criminal act.
This includes cases where the two persons involved in the sexual intercourse are both under the age of 18, and cases where one is an adult and one is a minor.
Under PC 261.5, statutory rape is a “wobbler,” which means it can be charged as a misdemeanor or a felony.
One of the factors that the prosecution will consider when determining whether or how to charge you with PC 261.5 is the age difference between you and the alleged victim. If you and the alleged victim are within three years of age, you will likely be charged with misdemeanor statutory rape. If you are more than three years older than the alleged victim, you could be charged with a misdemeanor or a felony. If you are 21 years old or older and the minor is under the age of 16, the prosecution can charge you with a misdemeanor or a felony, but the punishment you face will be more severe.
Misdemeanor statutory rape is punishable by up to 364 days in jail and a fine of $1,000. If the minor is 16 or older and you are not over the age of 21, you could face felony statutory rape charges that carry up to three years in county jail. You could face up to four years in state prison and $10,000 in fines if you are older than 21 and the alleged victim is under the age of 16.
Additionally, you could face lifetime registration as a sex offender pursuant to California Penal Code Section 290 if you are convicted of this crime. The judge has discretion to require you to register as a sex offender if you are convicted of this crime. The judge must consider whether you committed a violation of PC 261.5 due to “sexual compulsion or gratification” pursuant to Penal Code Section 290.006.
If you are accused of statutory rape under PC 261.5, you are facing severe consequences . You should speak to an experienced statutory rape attorney immediately. At Wallin & Klarich, we have been successfully defending clients facing statutory rape and serious sex crime charges for over 40 years. Let us help you now.
With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich statutory rape defense attorney available near you no matter where you work or live.
Call our law firm today at (877) 4-NO-JAIL or (619) 404-2863 for a free phone consultation. We will get through this together.
Stephen Klarich is a partner at Wallin & Klarich and expert in the field of sex crimes. For over thirty years, Stephen Klarich has been handling criminal cases and matters involving sex offenses. With an unparalleled knowledge of sex crimes defense, Stephen Klarich protects his clients’ rights. Stephen Klarich has experienced significant success in obtaining a Certificate of Rehabilitation or Governor’s Pardon for his clients. Thousands of clients have put their trust in Stephen Klarich and the attorneys at Wallin & Klarich in their time of legal need.
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Home Blog Having Sex With a Minor
Lamano Law Office | May 1, 2020 | Sex Offenses
Serving the Oakland - San Francisco Bay Area
Having sexual intercourse with a minor is obviously against the law, but it’s not always a simple case. What you are charged with and what the potential consequences will be will largely depend on several factors, such as the exact age of the minor and how old you were at the time of the offense. It can be a tricky situation, and it is only exacerbated by the social stigma attached to these types of offenses. Here’s what you need to know about being charged with having sexual intercourse with a minor.
Most people probably think of the term statutory rape when the concept of sex with a minor is brought up. A statutory rape charge applies when someone has intercourse with a minor under the age of 18. This crime is covered in Section 261.5 of the California Penal Code. California is one of the few states that allows people to get married at any age, however, it requires parental consent and the consent of the court. In such a situation, intercourse with a minor may be legal.
When it comes to statutory rape, consent can never be a defense. If the child is under the age of 18, then having sex with them would be illegal. It is still illegal even if you are under the age of 18, or very close in age to the minor. Since they are not of legal age to have sex, then they cannot “consent” to the act.
That said, statutory rape can be charged as a felony or a misdemeanor. This is what is known as a “wobbler” offense. The circumstances at the time of the incident will dictate how severe the punishment will be if convicted. Those circumstances are the ages that you and the minor are when you have sex.
For instance, if you are close in age and within 3 years of the minor, then the charge will be a misdemeanor. You may face jail time and a fine.
Being more than 3 years older than the minor means the sentence is a bit higher. If the minor is 16 or 17 years old, then the court has the choice of charging you with a misdemeanor or a felony. If it is charged as a misdemeanor then the consequences are the same as if you are close in age to the minor. If it is charged as a felony, then the consequences are much harsher and could include several years in jail.
When the victim is under 16 years of age, then the penalties can be even more severe, especially if you are over the age of 21. Fines and jail time for this offense can be quite high.
If you are convicted of statutory rape you will not necessarily be counted on the sex offender registry. However, a judge can mandate that you register at their discretion. They would only do this if the details of the offense and the specific case warrants that designation.
A lewd act is any behavior that is sexual in nature. If your sexual encounter is with a minor who is under the age of 14, then the charges you face could fall under the Lewd Act Section of the Penal code, 288(a).
A lewd act can mean one of many things. For example, it could be touching a child inappropriately through clothing or on bare skin. It can also be if you got the child to touch themselves or someone else in a sexual or provocative way. To be a criminal offense, the touching must be on purpose, and you must have done it for sexual arousal of some kind, whether it be for yourself or the minor. Again, a minor cannot consent to these acts, so that can not be a defense.
Since the victim is under the age of 14, the state considers this a felony, and the penalties can be much more severe than if you are charged under the statutory rape law. Along with jail time and fines, you can also get a strike on your criminal record. Since California has the three strikes law, subsequent convictions can mean even more jail time and higher fines. Not only that, but you will be mandated to register as a sex offender. Lewd acts with a minor is a serious crime and carries serious consequences.
Defending a charge of statutory rape or lewd acts with a minor can be incredibly difficult. You need the services of a knowledgeable and experienced sex crime attorney who can fight for your rights and for the best outcome possible. If you have been charged with having sexual intercourse with someone who is a minor, contact Lamano Law today at 510-916-3582 to talk about how we can help.
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It is illegal for an adult to have sex with someone who is a minor or below the age of consent. These laws are in place to help prevent adults from seeking out young people who may be easily influenced or unable to make wise decisions on their own — or who may feel they have no choice in the matter.
While the law is clear on this point, one issue is whether or not sex is illegal if someone lies about their age and claims to be older than they are. For example, say a 20-year-old male college student has sex with a girl who is 15 years-old.
The argument made against the “lied about age” defense is that the 20-year-old should be able to tell that the girl is not also an adult. Therefore, if he has sex with her, some would argue that he is doing intentionally having sex with a minor.
However, the internet has made this harder. This is where many young people turn for these encounters, and lying is simple. Say the two meet on an app and the girl says that she is 18 years-old. The argument has been made that the male student has not broken the law because, as a court ruled in one case, “ where solicitation occurs solely over the Internet, however, it is extremely difficult to determine the age of the person solicited with any certainty. ”
The exact scenario has happened. A teen in Indiana met a 14-year-old girl online. He was 19 and she claimed she was 17, making the relationship legal in the state. After it was discovered, the boy ended up on the sex offenders list, but his family fought to get him taken off on the grounds that he thought everything was legal. He did not know she was 14 and she misled him, they claimed.
As you can imagine, cases like this can get very complicated. If you are facing charges, be sure you’re aware of your legal rights .
Sheppard, White, Kachergus, DeMaggio, & Wilkison, P.A. Attorneys & Counselors at Law
Phone: 904-356-9661 After Hours Phone: 904-727-7191 Fax: 904-356-9667
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