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Rape vs. Statutory Rape: Consent Element

Law Office of Kristine Koo

What is rape?  

Rape is a type of sexual assault PC § 261(a).  It is when there is non-consensual sexual activity or sexual intercourse that is forced upon another person, who does not consent.  Rape can be accomplished by force, violence, intimidation, injury, or threat.  

The People of the State of California will have to prove the following for someone to be convicted of rape: 

1) The defendant had intercourse with another person,  

2) That person did not consent to the intercourse, and, 

3) The defendant accomplished the intercourse by force, violence, menace, or fear of immediate or unlawful bodily injury to the woman or to someone else.

Note: A key part of this crime is non-consent.  So, the fact that someone is threatening someone to have sex with them, and the other is not agreeing, is the essence of this crime. 

Consent must be freely and voluntarily and have knowledge of the nature of the act.  In other words, the person consenting must know what they are getting into and agreeing to partake in such sexual act. 


Rape is a felony.  This offense is punishable by 3 years (mitigated), 6 years, (mid term), or 8 years (aggravated) in prison.  Someone may be able to get formal probation, instead of prison, depending on the circumstances.  Sex registration is included. 

How about statutory rape? 

Statutory rape is when someone 18 or over has sex with someone under 18 years old. (See PC § 261.5).  It does not matter if the person under 18 years old consents.  The mere fact that someone has sex with someone under 18, can be a crime of statutory rape.  A person under 18 cannot legally consent.  As such, even if there is no force, threat, or ill-will, it does not matter – the fact that someone has sex with someone under the age of 18 – is what matters.  

The People of the State of California will have to prove the following for someone to be convicted of statutory rape: 

1) Defendant participated in an act of sexual penetration with another person; 

2) There was penetration (of a genital, object, substance, instrument, or device), 

3) The other person was under 18 years old at the time of the act.

What are the penalties of statutory rape? 

In California, statutory rape is a “wobbler.”  Depending on the circumstances, it can be charged as either a misdemeanor or felony.  

Misdemeanor – Informal probation, max of 365 days in county jail, fines and fees

Felony – Formal probation with county jail (up to 365 days), or prison – 16 months (mitigated), 2 years (mid term), or 3 years (aggravated) in prison, OR prison – 2 years (mitigated), 3 years (mid term), or 4 years (aggravated) in prison when the defendant is 21 years or older and the accusing party is under 16.  

What is a defense to statutory rape?

If the defendant reasonably and actually believed that the person was over 18 years old.  

For example, you are at a Sorority party at your college.  A group of people visit that are not from your college.  The party at the sorority is for people 18 and up only as alcohol is involved.  You start dancing with one of them and one thing leads to another and you end up having sex with that person.  You believed that person was over 18 years old, given the setting, and could legally have sex with you.  You later learn that person was 16 years old.  

Consent is NOT a defense.  

Statutory rape is a strict liability offense.  

Strict liability crimes do not require proof of intent or knowledge of wrongdoing.  This means that a person can be found guilty of a strict liability offense even if they had no intention to commit the offense or were unaware that their actions were illegal.  

Will I have to register as a sex offender if I am convicted of statutory rape? 

No, you will not.  Under PC 290, which lists the offenses that are required to register as sex offenders, PC 261.5 is not one of them.   

One must note that if one is convicted of rape, however, or other crimes involving children/minors (under 18 years old), depending on what the charge is, may be required to register as a sex offender.  

What should you do if you are being investigated or charged with rape or statutory rape?   

One should contact an attorney immediately.  These situations can be time sensitive, navigating the criminal justice system can be tricky, and doing it on your own may not be wise.  Contacting an experience attorney is key.  

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