If you're in a situation where you have been charged with consensual sex with a minor, known as statutory rape, do you still have to register as a sex offender? This is a common question we are frequently asked.

California Penal Code Section 261.5 PC is the statute that covers having sex with someone under the age of 18 that is consensual, as long as the person is not ten years older than the victim, and if the victim is not under the age of 17. You might be able to avoid having to register as a sex offender under the right circumstances.  Of course, you've got to sit down with an attorney.

Penal Code 261.5 PC is one of the few crimes you are not mandatorily required to register as a sex offender in California under Penal Code 290 PC.  However, the prosecutors can try to make that a term and condition of probation if they think that was warranted based on the circumstances. A judge could order that as well. 

So, that's something your attorney will have to negotiate on your behalf. If you had to register as a sex offender only during the course and scope of your probation, that would be a lot less than having to register under the three-tier system, where you have to register for 10, 20, or even life, depending on what you end up pleading guilty to.

To better understand statutory rape and the connection to the sex registry, our Los Angeles criminal defense lawyers will discuss this topic below.

See related: Use of Prior Incidents in Sex Crime Charges

What is Statutory Rape?

In California, it's illegal to engage in sexual intercourse with anyone under 18 years old.  PC 261.5 defines the crime known as statutory rape, which is also called “unlawful sex with a minor.” It doesn't matter If the sex was consensual or the minor initiated the sexual activity.

The issue of statutory rape often elicits many questions from people under criminal investigation or who have already been charged. Common questions include:

• What if I was also under 18 at the time?
• What if we both were close in age, such as one year apart?
• What if we were in a committed long-term relationship?

While these are valid questions, they generally do not factor in the initial charges for statutory rape. Many states have passed what is known as “Romeo and Juliet Laws” that say two people who are close in age that have a committed relationship before they turn 18 can legally engage in sexual activity. California does not have any such law.    

Under Penal Code 261.5 PC, statutory rape is legally defined as:

• “any act of sexual intercourse accomplished with someone who is not the perpetrator's spouse if they are a minor.”

Thus, the determining factor as to whether a statutory rape offense occurred is the victim's age. Let's review this crucial topic further below.   

See related: Best Defense in a California Sex Crime Case

What are the Penalties for Penal Code 261.5 PC?

The primary factor determining the severity of the crime, such as a misdemeanor or felony, is the age difference between the defendant and the victim.  For example:

• If the age difference was three years or less: it's a misdemeanor offense. For example, if the perpetrator is 19 and the victim is 16.
• If the age difference was more than three years: it's a “wobbler,” meaning it can be charged either as a misdemeanor or a felony.
• If the defendant is 21 or older and the victim is 16 or younger, it's usually a felony with severe penalties.

A misdemeanor statutory rape conviction is punishable by up to a year in county jail. A felony statutory rape could result in up to 4 years in state prison.

Sex offender registration 

Penal Code 261.5 PC statutory rape is one of the few sexually-related charges in California that does not usually require registration as a sex offender under Penal Code 290 PC. The related crimes for Penal Code 261.5 PC statutory rape include:

• Penal Code 288 PC lewd or lascivious acts with a minor, and
• Penal Code 261 PC rape.

Close-In-Age Statutory Rape Cases

So, consensually, if you or a loved one is charged with Penal Code Section 261.5 PC, which covers having sex with someone under the age of 18.  This is a circumstance where you'll usually see a 17-year-old with an 18-year-old have sex, the parents find out, or some law enforcement findings out, and then this person gets charged with statutory rape.  

Now, it's up to your defense attorney to prevent you from registering as a sex offender and prevent several other nasty things that can occur to you if you get convicted of this particular crime.

A lot of times, when you have that scenario where people are close in age and are very close to being an adult, we can convince the prosecutors not even to file that case, especially in a scenario where you have 17 and 18-year-olds who are dating consensually when some sexual act is performed.

Sometimes, law enforcement finds out about it, and a lot of times, we can prevent a filing in these types of cases, although technically, that's a crime. Depending on which jurisdiction you are in, some prosecutors may file that case after reviewing the circumstances.

How Can I Fight Statutory Rape Charges?

If you‘re charged with any sex crime, your best bet is to get to an attorney right away.  I've been doing this now for 30 years.  I started out working for the District Attorney's office, and then I worked for a Superior Court Judge in LA.

Finally, in the early 1990s, I started defending these cases. I had a lot of success preventing people from having to register as sex offenders, keeping people out of jail and prison, and protecting their freedom, rights, and future.

One of the most common defenses includes arguing that you had a belief the victim was not a minor at the time of sexual intercourse. Maybe you believed they were over 18 but were incorrect. A good-faith belief that the alleged victim was over 18 is a valid defense against statutory rape.  When using this, there are some essential factors we can use to support your belief:  

• Perhaps the victim told you she was over 18,
• Their clothes and general physical appearance made them appear older,
• The location where you met the victim, such as a bar

Another defense includes showing that statutory rape accusations are false. Maybe the alleged victim made the inaccurate allegation due to anger or jealousy. You've come to the right place.  If you or a loved one are being investigated or charged with having consensual sex with a minor, pick up the phone now.  We'll go over the elements of the crime. 

I encourage you to be honest with me because anything you say is protected under the attorney-client privilege.  We'll fully understand what happened with your case and then get a strategy together to help you. The Hedding Law Firm is located in Los Angeles County and serves people across Southern California. Our law firm offers a free case review by phone at (213) 542-0979, or by filling out our contact form.