What is the Age of Consent in California?

by Ambrosio Rodriguez | Nov 25, 2019 | Sex Crimes

Can a 16-year-old date an 18-year-old? Can a 15-year-old date a 19-year-old? Is it okay for teens to have sex if both are fully on board and want to willingly engage in the act? These questions – or similar variations – are asked more frequently than you might think. And, for good reason. When sex involves anyone under the age of 18, things can get complicated. That’s why it’s critical to understand what the age of consent is in California and what the potential consequences of having sex with a teen.

The Age of Consent in California is 18

Consent refers to the legal ability to willingly agree to do something. In California, the age of consent is 18. That means that anyone under the age of 18 cannot legally consent to have sex. That’s true, even if both parties involved want to have sex. In the state’s eyes, anyone under the age of 18 lacks the capacity to make an informed decision.

What Happens If a 17-Year-Old Has Sex With an 18-Year-Old?

Let’s say that 18-year-old Joe and 17-year-old Jenn are dating. Both are seniors in high school. Under California state law, Joe has the ability to consent to engage in sexual intercourse. However, Jenn does not. It doesn’t matter that they’re both in the same grade or that both might be eager to get it on. Under the law, it is quite clear – it’s illegal for Joe and Jenn to have sex.

What happens if Joe and Jenn decide to have sex, anyway? Joe could potentially face criminal charges for statutory rape under California Penal Code 261.5 PC.

California Penal Code 261.5 PC

According to Penal Code 261.5 PC, it is a crime for a person who is at least 18 years old to have sexual intercourse with a minor. In California, sexual intercourse is defined to mean “any penetration, no matter how slight, of the vagina or genitalia by the penis.” Under state law, ejaculation isn’t required for an act to be considered sexual intercourse.

Does California Have a Romeo and Juliet Exception?

Some states have laws that carve out an exception when two teenagers who are both minors close in age have sex. For example, in Texas, consensual sex between a 16-year-old and a 17-year-old wouldn’t necessarily violate the state’s statutory rape law, even though the age of consent in the state is 17. That’s because, under Texas’s Romeo and Juliet law, teens can have sex as long as both teens willingly engage in the act, they’re close in age and at least 14 years old, and neither is a registered sex offender.

California does not have a Romeo and Juliet law. So, it’s possible that teens involved in a sexual relationship could face criminal charges. The only exception to the state’s strict age of consent law involves couples who are married. It’s not a crime to have consensual sex with your spouse, even if they’re under the age of 18.

What Are the Penalties For Having Sex With a Teenager in California?

It depends. Specifically, it primarily depends on the age difference between the individuals involved.

Age Difference Doesn’t Exceed 3 Years

When the age difference between the adult and the minor is less than three years, the crime of unlawful sex with a minor is typically a misdemeanor. Penalties can include up to 12 months in a Los Angeles County Jail, fines, and probation.

Age Difference Exceeds 3 Years

When the age difference exceeds three years, the crime becomes a wobbler. That means it can be a misdemeanor or a felony. It typically depends on the circumstances of the crime and relevant facts. The adult’s criminal record, the number of years between the adult and minor, and whether the sex was consensual might all be relevant factors.

As a misdemeanor, this sex crime carries a maximum of 12 months in a County Jail. As a felony, a conviction can result in 12 months, two years, or three years in a County Jail.

Sex Between Someone Younger Than 16 With Someone Who’s At Least 21

If a 15-year-old has sex with a 21-year-old, the adult in that scenario can face misdemeanor or felony statutory rape charges. Again, the charge will ultimately depend on factors relevant to the parties and their sexual relationship. The felony charge can result in up to four years in a California state prison.

Penalties for statutory rape can be aggravated if the adult holds a position of power over the minor, if the minor sustains an injury, or if the sex is not consensual.

Consent is Not a Defense to Statutory Rape

The age of consent in California is 18. Under the law, teenagers do not have the legal capacity to decide to engage in sexual intercourse. Many do, anyway. If someone gets hurt – physically or emotionally – or if concerned parents catch wind of sexually-charged teenage relationships, the consequences can be very serious. Anyone who is facing charges for unlawful sex with a minor should seek the assistance of an experienced Los Angeles criminal defense attorney immediately.

To learn more, call our Los Angeles criminal defense law firm at 213-995-6767 or visit our contact us page to send us an email.