Our lawyers receive many questions related to the age of consent in California and what it means for teenagers of different ages to date and engage in sexual activity. However, regardless of the ages of those involved and whether they are in a relationship or not, sexual activity where one or more party is under the age of consent is a complex matter. In this article, we will discuss the age of consent in California and what it means for teenagers.
What Is California’s Age of Consent?
In California, the age of consent is 18 years old. This is the age that the law believes teenagers can willingly agree to sexual activity knowing the risks and with the capacity to make a decision. Sexual activity with someone under 18 is considered statutory rape because the minor is unable to give their consent in the eyes of the law.
What Does California Law Say About Statutory Rape and the Age of Consent?
Our attorneys are constantly asked hypotheticals involving two teens dating; one is 18 and therefore able to give consent, but the other is 17 and therefore unable to give legally recognized consent. Even though they are both seniors in school and have been dating for years and the 17-year-old gave their consent, this is illegal. The 18-year-old, no matter their gender, may be charged with statutory rape under California law.
The law that provides the age of consent is California Penal Code 261.5. This law defines sexual intercourse as the penetration of genitalia by a penis. Any penetration is considered as sex, no matter how slight, and regardless of whether there is ejaculation. It is illegal under this law for someone over the age of 18 to engage in sexual intercourse with someone under the age of 17.
California Does Not Have a Romeo and Juliet Law
The Romeo and Juliet Law is an exception that some states give for two minors engaging in consensual sex. It allows two teenagers over the age of 14, and close in age to engage in sex as long as it is consensual, and neither is a sex offender. Texas allows this exception. California does not allow this exception in its laws, and therefore, unless the couple is married, it is illegal to have sex with someone under the age of 18.
What Are the Penalties For Having Sex With a Minor In California?
The penalty for having sex with a minor in California depends on the age difference between the people involved.
Age Difference of 3 Years or Less
If the age difference is 3 years or less at the time of the sexual activity, then the crime will be charged as a misdemeanor. It will be penalized with up to 12 months in county jail, probation, and fines.
Age Difference of More Than 3 Years
If the age difference is more than 3 years, it could be charged as either a misdemeanor or a felony. In the industry we refer to this as a wobbler. This means that the circumstances of the case will be considered as well as the amount of the age difference, the criminal record of the adult and whether consent was given or not. If the case is tried as a misdemeanor, then you will receive up to 12 months in county jail, probation and fines. If the case is tried as a felony, you will receive 1-3 years in county jail, probation, and fines.
If the Minor Is Under 16 and the Adult Is Over 21
If someone under the age of 16, so 15 or younger, is having sex with an adult over the age of 21, then the adult may face statutory rape charges. They could be charged as either a felony or a misdemeanor offense, depending on the circumstances of the case. A felony, in this case, may attract state prison time of up to 4 years. If the adult holds a position of power, the sex was non-consensual, or the minor is injured, then they may receive higher penalties.
Is Consent a Defense to California Statutory Rape Charges?
No, in the eyes of a law, someone under the age of 18 is not able to consent to sexual activity. They are not seen as having the capacity to make an informed decision when providing consent. Consent is only considered when determining how to charge the adult accused of statutory rape.
Many teens engage in sexual activity before they reach the age of consent, but the circumstances may be serious, especially when one is 18 and one is not. If one of the teenagers becomes hurt or a parent decides to press charges, then they may be facing criminal charges. If you or a teenager in your care is facing statutory rape charges or charges for sex with a minor, contact a California criminal defense attorney to discuss your case.