California has some of the most stringent sex crime laws in the country. Among the most severe sex crimes is rape, addressed under California PC 261. You will be arrested and charged with rape if you engage in non-consensual sexual intercourse with another person. Rape is divided into different categories depending on the circumstances. Statutory rape is one of the types of rape, and it is charged on individuals who engage in sexual intercourse with minors. Since children cannot legally consent to sex, engaging in such conduct with them may attract a conviction for statutory rape.

Although rape and statutory rape involve unlawful sexual intercourse, the offenses differ in definition, elements, and even the penalties you face after a conviction. If you face charges under PC 261 or 261.5, you will need the guidance of a skilled attorney to fight the charges and avoid the harsh consequences of a conviction. Understanding the differences between these offenses so you can formulate a strong defense for your specific violation. Some of the differences between PC 261 and 261.5 include the following:

Legal Definition Of Rape

Under California Penal Code 261, rape is non-consensual sexual intercourse with another person. For this law, sexual intercourse refers to any form of sexual penetration between the penis of one person and the vagina of the other. Most people only understand rape as non-consensual, forcible sexual penetration. However, there are other ways through which this act could be accomplished, which include when:

  • The victim is legally unable to consent and is prevented from refusing due to having ingested alcohol or drugs, which the rapist knew or reasonably should have known
  • Threatens to use the authority of a public official to arrest, deport or impose detrimental legal consequences on a victim or another person if the victim failed to consent
  • Acts knowing the victim was unconscious or asleep
  • Acts knowing of the victim’s mental disability
  • Acts by perpetrating a fraud on the victim
  • Threatens to retaliate against the victim or another person, meaning kidnap, inflict extreme pain, serious bodily injury or death

Legal Definition Of Statutory Rape

Statutory rape, on the other hand, involves sexual intercourse with someone under 18. Under California Penal Code 261.5. an individual under eighteen cannot consent to any sexual act. For this reason, you can face an arrest and criminal charges even when the action was not forced, or when you believe that the minor victim allegedly consents. The following are classes of individuals who cannot legally consent to sex in California:

  • Minors under eighteen years
  • Individuals with mental disabilities
  • Persons with a severe physical disability
  • Persons who are intoxicated, anesthetized or asleep

If you face charges for statutory rape, the prosecution will bring additional charges like child abuse or molestation.

Elements Of California Penal Code 261

Since rape and statutory rape differ in their definition, the elements required to establish your liability for the offenses are also different. If you face an arrest and charges for rape, the prosecutor must prove these elements beyond a reasonable doubt:

  1. You Engaged In Non-Consensual, Sexual Intercourse With Another Person.

Rape and statutory rape involve sexual penetration. However, the main element that differentiates PC 261 is that criminal sexual intercourse among adults must non-consensual. People can only consent to a sexual act if they are of legal age and freely or voluntarily agree. Additionally, a person should be able to comprehend the nature of the action for them to consent.

You must understand that individuals who give consent may withdraw it at any time, even in the middle of the act. If you fail to respect the withdrawal of consent, you can still be charged and convicted of rape. A sexual act is done without permission under the following circumstances:

  • The alleged victim communicated no consent verbally or through their actions. A physical struggle is unnecessary to express a lack of consent.
  • A reasonable individual would have understood the acts or words as a lack of consent.
  • The defendant continued with the act while ignoring the victim’s objection

If a person fails to resist your sexual advances owing to their physical or mental incapacitation, you will still be charged for violating PC 261 laws.

  1. You Accomplished The Sexual Acts Using Force, Fear, Menace, Violence Or Fraud

The manner of committing criminal sexual conduct differentiates PC 261 from other rape laws. Before your conviction under this statute, the prosecutor must prove that you completed the action through the following means:

  • Force. Use of force means you apply physical force to overcome the victim's will.
  • Violence. You accomplish a sexual act through violence if you engage in behavior that intends to harm or kill the victim.
  • Fear/threats. Use of fear means that you threaten to harm the victim and your actions cause them to fear for their safety.
  • Fraud. Fraud means using deceit to accomplish the act. For example, misrepresenting a fact to influence a person’s will is considered fraud.
  • Retribution. Forcing someone to engage in an act for fear of payback is retribution.

Elements To Prove Penal Code 261.5

If you face charges for statutory rape under Penal Code 261.5, the following elements are key in proving your guilt:

  • You Engaged In Sexual Intercourse With A Minor

The main element that the prosecutor must prove to show your guilt for statutory rape is that you engaged in sexual penetration with a juvenile. Under this statute, in California, a minor is any individual under eighteen (18) years of age.. Minors are a group of individuals who cannot legally consent to having sex under any circumstances. Therefore, the prosecutor does not need to show that you accomplish the act through force, fear, violence, or fraud. The main element is the age of the victim. This is a statutory offense, meaning that no intent is required.

The striking contrast between statutory rape and ordinary rape laws is the issue of consent. While rape addresses a lack of consent, statutory rape is built on the victim's age. Although prosecutors do not prioritize it, you can be charged with statutory rape even when you are a minor. Engaging in sexual contact with a person under 18 years of age will attract PC 261.5 charges, and there are categories of offenses/penalties based on the age of the minor victim.

Classification Of The Crimes

California Penal Code 261 is charged depending on the degree and nature of the act. There are several forms of rape, including:

  • Date Rape. Date rape is non-consensual sexual intercourse between individuals who know each other and have been in contact and could range from a first date to a serious relationship. Although date rape seems informal, sexual intercourse under these circumstances attracts PC 261 charges and penalties.
  • Marital Rape. Sex should be consensual even between married couples. Spousal or marital rape occurs when one party in a marriage uses force, violence, or fear to engage in sexual intercourse with the other.

On the other hand, statutory rape is charged depending on the victim's age. Under California law, a person is considered a year older one minute after the midnight of their birthday. A person of any age could be charged with statutory rape.

Nature Of The Criminal Charges

Under California Penal Code 261, rape is charged as a felony. On the other hand, statutory rape is a wobbler. A wobbler is an offense that can be charged as a felony or a misdemeanor. One of the factors that could affect the prosecutor’s decision includes your criminal history. If you have a prior conviction for rape or another sex crime, the prosecutor may file felony charges. Another factor that could affect the nature of your charges is the age of the victim:

  • If the age difference between you and the victim is less than three years, you will most likely face misdemeanor charges, unless there was force, violence or injury.
  • If the age difference between you and the alleged victim is more than three years, you can face misdemeanor or felony charges depending on the circumstances and aggravating acts, such as force, violence or injury.
  • If you are over twenty-one and the victim is younger than sixteen, you will be charged with a felony.

In California, the Romeo and Juliet Law doesn’t apply. This law makes it legal for minors to have sex with each other. In California, sexual intercourse with a minor will always attract criminal charges. However, being close in age could reduce the seriousness of your charges.

Penalties For A Rape Conviction

Due to the difference in nature of criminal charges, the penalties for rape and statutory rape vary significantly. A conviction for PC 261 is a felony that carries the following legal punishment:

  • A prison sentence of three, six, or eight years
  • Fines that do not exceed $10,000
  • Lifetime sex-offender registration

Since rape could be accomplished using force or violence, there is a likelihood of causing injury to the victim during the commission of the act. If the victim of your actions suffered an injury, you risk facing a great bodily injury enhancement. Under this statute, great bodily injury is a significant injury that does not include financial losses or emotional scarring. If the great bodily injury enhancement applies to your case, your prison sentence will increase by up to five years.

In addition to the harsh prison sentence and hefty fines, rape is a strike under California's three strikes law. California's Three Strikes Law is the sentencing scheme that ensures that repeat felony offenders suffer harsher criminal penalties. You could face double your sentence for rape if you have been convicted of another strike offense prior to your rape conviction. On the other hand, if you have two prior strikes, you risk spending a lifetime behind bars.

The consequences of a rape conviction are serious and life-changing. Unfortunately, you cannot expunge the conviction if you have spent time in prison. An expungement is a post-conviction relief that allows you to avoid the disabilities of your conviction. Being sentenced to prison disqualifies you from this type of relief.

Penalties For Statutory Rape Conviction

Statutory rape is a wobbler. Therefore, the penalties depend on how your crime is charged. As a misdemeanor, statutory rape is punishable by:

  • A one-year jail sentence
  • A $1,000 fine
  • Informal probation

On the other hand, a felony conviction under this statute will attract the following penalties:

  • Sixteen months, two years, or three years in prison. If you are over twenty-one years and the victim is under sixteen years, your sentence will increase to four years.
  • Felony Probation
  • Up to $10,000 in fines

In addition to the criminal penalties, a defendant who faces a conviction under this statute may suffer civil penalties in the form of fines. These fines range from $2,000 to $25,000, depending on the difference in age between the victim and defendants.

Unlike rape, you can avoid the disabilities of your PC 261.5 conviction by filing a petition to expunge the record. You can answer no about prior convictions if the court grants your petition. Additionally, the conviction cannot be used to discriminate against you in job applications. Statutory rape is not a strike under California's three-strikes law. Therefore, there is no possibility for penalty enhancement.


The penalties for a rape or statutory rape conviction are severe. Therefore, you must be aggressive in your defense. In a rape case, one of the key defenses that can help you beat the charge is arguing that the victim consented to the sexual act.  If you can prove that the alleged victim knew the nature of the action and participated willfully, you can avoid a conviction. As there are rarely witnesses to the majority of sexual misconduct cases, it is often difficult to establish consent of the victim. These cases are typically based on one party’s word against the other. Even if there is scientific evidence, such as DNA or other bodily injury. Often cell phone records, social media posts and inconsistent statements made to other persons and/or to police are helpful in proving that the victim consented to the sexual conduct at issue.

On the other hand, you cannot use consent as a defense in a statutory rape case. You can face a conviction for violating PC 261.5 even when the victim agrees to participate. This is because minors are legally incapable of consenting to sexual acts. The only way you can avoid a conviction for statutory rape is by proving that the alleged victim was not a minor at the time of the action or that the alleged rape did not occur. An experienced criminal defense attorney is essential to help you strategize and build defenses to rape charges.

Find A Los Angeles Criminal Defense Attorney Near Me

Rape is one of the most serious sex offenses under California law. You can face charges for engaging in non-consensual sexual intercourse with another person under Penal Code 261 or engaging in sex with a minor, known as statutory rape under PC 261.5. The main difference between statutory rape and rape is that in statutory rape, under California law, an individual under eighteen cannot consent to any kind of sex. Therefore, any sexual penetration involving a minor victim is considered rape.

Whether you face charges for rape or statutory rape, the consequences of a conviction go beyond prison time and fines. The sentence leaves behind a criminal record that is very difficult to shake off. Understanding the difference between PC 261 and PC 261.5 will help you build a defense against your charges. Seeking legal guidance is a key part of fighting rape charges. At the Law Office Of Sara L. Caplan, we offer competent legal advice and help build strong defense strategies for our clients facing sex crime charges in Los Angeles, CA. Contact us today at 310-550-5877.