Unlawful Intercourse (Penal Code Section 261.5)

In the state of California sex between one individual and a person who is under the age of 18 years is known as ‘Unlawful Intercourse’ under Penal Code section 261.5. This crime is commonly known as ‘statutory rape’. Presumably, that description came about because regardless of whether the underage person gives consent, it is still a violation of the law to have intercourse with them. This law only applies to actual intercourse and not oral sex or anal sex. The laws regarding oral and anal sex with underage individuals are much harsher, almost always felonies and usually require sex registration. A conviction under Penal Code Section 261.5 does not require sex registration.

Sex between someone over the age of 18 and someone under the age of 18 where there is three years or less of age difference may be filed as a misdemeanor under Penal Code section 261.5(b); if there is more then a three year age difference the crime may be filed as a misdemeanor or a felony (Penal Code Section 261.5(c)). If the Defendant is 21 years or older and the minor is under 16 then the maximum punishment may be four years in state prison although such a long sentence is very unlikely (Penal Code Section 261.5(d).

Practically speaking, it is possible for two individuals in high school engaging in consensual intercourse resulting in the one who is 18 being charged with Penal Code Section 261.5. For example, if an 18 years old high school senior has sex with his 16 year old girlfriend he can be charged with this crime. Often when this scenario occurs it is because the parents of the younger individual wish to discourage the relationship, or the younger female has become pregnant and the parents are upset. Often times, it is the angry parents who spur the District Attorney into action. Similarly though, parents of the younger person may be persuaded to ask the District Attorney for leniency since few realize that these charges can result in jail. Other times, the Defendant agreeing to a paternity test, which will then result in support payments, may soothe a parent up- in-arms over the unexpected pregnancy of the minor.


Contact Orange County defense attorney Katie Walsh if you need help with Unlawful Intercourse or any other criminal matter.

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