California Penal Code §261.5 — Statutory Rape (Unlawful Sexual Intercourse with a Minor)
PC §261.5 punishes sexual intercourse with a person under 18 who is not the defendant's spouse. Filing tier depends on the age gap between defendant and victim. Not more than three years' age gap → misdemeanor only. Larger age gap → wobbler up to 3 years state prison. Defendant 21+ with victim under 16 → wobbler with 2, 3, or 4-year felony range. §261.5 does NOT trigger mandatory PC §290 registration; discretionary registration under §290.006 is possible.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney · Statutory Rape (Unlawful Sexual Intercourse with a Minor) Cases in All LA County Courts
01 — Quick Facts
PC §261.5 — Statutory Rape (Unlawful Sexual Intercourse with a Minor) at a Glance
| Fact | Detail |
|---|---|
| Full Name | California Penal Code §261.5 — Unlawful Sexual Intercourse With a Minor |
| Code Type | Penal Code (PC) |
| Classification | Misdemeanor or Wobbler (age-gap dependent) |
| Age Gap ≤ 3 Years (§261.5(b)) | Misdemeanor only — up to 1 year county jail |
| Age Gap > 3 Years (§261.5(c)) | Wobbler — up to 1 yr jail or 16/2/3 state prison |
| Def. 21+ / Victim Under 16 (§261.5(d)) | Wobbler — up to 1 yr jail or 2, 3, or 4 yrs state prison |
| PC §290 Registration | NOT mandatory — critical distinction from other sex offenses |
| Discretionary §290.006 | Court may impose lifetime registration on findings of sexual compulsion/gratification |
| Civil Penalty (§261.5(e)) | Up to $25,000 civil penalty; sliding scale by age gap |
| vs Rape (§261) | §261 requires force/threat/incapacity — §261.5 is age-based only, consent legally irrelevant |
| Immigration | May be CIMT / sexual abuse of minor — aggravated felony risk if sentence 1 year+ |
| If Charged | Call (213) 723-2337 immediately |
01 — What Is PC §261.5?
What Is California Penal Code §261.5?
PC §261.5 Reads:
"Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is a minor. For the purposes of this section, a 'minor' is a person under the age of 18 years and an 'adult' is a person who is at least 18 years of age."
— California Penal Code §261.5(a)
§261.5 replaces the common-law crime of 'statutory rape.' It punishes intercourse based solely on the victim's age. Consent is legally irrelevant — a minor under 18 cannot legally consent to intercourse in California. The critical variables are the age of the minor and the age difference between defendant and minor, which drive filing tier and civil-penalty exposure under §261.5(e).
Age Gap Drives the Charge
§261.5(b): age gap 3 years or less — misdemeanor only, up to 1 year jail. §261.5(c): age gap more than 3 years — wobbler, up to 3 years prison. §261.5(d): defendant 21 or older and victim under 16 — wobbler, up to 4 years prison. The DA's filing decision is often the entire case.
Official Sources
02 — Elements of the Crime
Elements the Prosecution Must Prove Under PC §261.5
The prosecution must prove each element beyond a reasonable doubt (CALCRIM 1070–1072).
Act of Sexual Intercourse
Any penetration, however slight — completion not required.
The Minor Was Under 18
Victim was under 18 at the time of the act. Marriage to defendant is an affirmative defense.
Not the Defendant's Spouse
The parties were not married at the time.
04 — Penalties
Penalties for PC §261.5 Statutory Rape (Unlawful Sexual Intercourse with a Minor) in California
§261.5 penalty and civil exposure are age-gap driven.
| Charge | Code | Prison Term | Probation | Strike |
|---|---|---|---|---|
| §261.5(b) — Age Gap ≤ 3 Years | PC §261.5(b) | Misdemeanor only — up to 1 year county jail | Available | No |
| §261.5(c) — Age Gap > 3 Years | PC §261.5(c) | Wobbler — up to 1 yr jail or 16/2/3 state prison | Available | No |
| §261.5(d) — Def. 21+ / Victim < 16 | PC §261.5(d) | Wobbler — up to 1 yr jail or 2, 3, or 4 yrs state prison | Available on findings | No |
Civil Penalties Under §261.5(e)
Age Gap 2 Years or More
PC §261.5(e)(1)(A)
Civil penalty up to $2,000.
Age Gap > 3 Years
PC §261.5(e)(1)(B)
Civil penalty up to $5,000.
Def. 21+ / Victim < 16
PC §261.5(e)(1)(D)
Civil penalty up to $25,000.
Additional Consequences Beyond Prison
- NO mandatory PC §290 sex-offender registration — the critical distinction from §261, §288, §288a
- Discretionary §290.006 registration on finding of sexual compulsion or gratification (People v. Hofsheier abrogated by Johnson v. Department of Justice)
- Immigration: risk of 'sexual abuse of a minor' aggravated felony under 8 USC §1101(a)(43)(A) if felony with 1-year+ sentence
- Civil penalty under §261.5(e) payable to the victim; recovered by DA
- Restitution under §1202.4 — counseling costs, therapy, medical bills
- Firearm ban on any felony conviction
Sentencing References
05 — Defense Strategies
How Rubin Law Defends PC §261.5 Statutory Rape (Unlawful Sexual Intercourse with a Minor) Charges
§261.5 defenses focus on the age element and reasonable mistake.
People v. Hernandez — Reasonable Mistake of Age
Good-faith, reasonable belief the person was 18+ is a complete defense — the doctrine is peculiar to §261.5 and unavailable in most other sex-offense statutes.
Mistake of Age
No Sexual Intercourse
Prosecution must prove penetration — absent it, the charge should be dismissed or filed under another statute.
Actus Reus
Marriage Defense
Legal marriage at the time is a complete defense — the sole intra-marital sex-offense exception in California.
Spousal Exception
PC §17(b) Reduction
Reduce §261.5(c) or (d) felony to misdemeanor — eliminates §290.006 discretionary registration risk and preserves immigration status.
Non-§290 Plea Structuring
Negotiated pleas to §261.5 (rather than §261, §288, or §288a) protect the client from mandatory §290 registration — the single most important §261.5 outcome.
Registration Avoidance
Constitutional Sources
07 — Court Process
How PC §261.5 Statutory Rape (Unlawful Sexual Intercourse with a Minor) Cases Move Through Los Angeles Courts
§261.5 cases move through the sex-crimes calendar with intensive charge-selection stakes.
- 1
Step 1 — Report / Investigation
Charges frequently originate from mandated-reporter disclosures (teachers, counselors) or family reports.
- 2
Step 2 — SART Exam / Forensic Interview
The minor completes a Sexual Assault Response Team (SART) exam and a forensic interview at a Children's Advocacy Center.
- 3
Step 3 — Filing Decision
DA evaluates age gap, corroborating evidence, and any §288/§288.5 alternatives — filing tier is dispositive.
- 4
Step 4 — Arraignment
Protective orders under §136.2 are entered — no contact with the minor.
- 5
Step 5 — Motion Practice
Evidence Code §782 rape-shield motions; motion to compel §1054.7 discovery.
- 6
Step 6 — Preliminary Hearing (felony filings)
Age element, intercourse, and mistake-of-age defense litigated.
- 7
Step 7 — Trial or Plea
Negotiated pleas to §261.5 rather than §261/§288 protect from §290 registration; §17(b) reductions eliminate prison exposure.
- 8
Step 8 — Sentencing / §290.006 Litigation
If convicted, defense litigates the discretionary §290.006 registration finding — critical to future employability.
Los Angeles Courts That Handle PC §261.5 Statutory Rape (Unlawful Sexual Intercourse with a Minor) Cases
§261.5 is heard in the district sex-crimes calendar.
Reviewed by Your Attorney
Daniel S. Rubin — Los Angeles Statutory Rape (Unlawful Sexual Intercourse with a Minor) Defense Attorney
Daniel S. Rubin has defended clients charged with statutory rape (unlawful sexual intercourse with a minor) and related offenses in Los Angeles County courts — including Clara Shortridge Foltz, Van Nuys, Compton, and Pomona. He understands that these cases are won in the details: the suppression hearing that eliminates key evidence, the preliminary hearing cross-examination that exposes a weak witness, the penalty phase argument that keeps a client out of the worst outcome.
This page was written and reviewed by Daniel A. Rubin, Los Angeles criminal defense attorney, CA State Bar 302093, with 10+ years of experience defending clients charged under PC §261.5 in Los Angeles County. Last reviewed: July 2026.
CA Bar 302093 | Whittier Law School | Rising Star — Super Lawyers 2019–2023 | Statutory Rape (Unlawful Sexual Intercourse with a Minor) Cases Throughout LA County
See our full Statutory Rape (Unlawful Sexual Intercourse with a Minor) defense practice
09 — FAQs
PC §261.5 Statutory Rape (Unlawful Sexual Intercourse with a Minor) Questions — Los Angeles
Does §261.5 require me to register as a sex offender?
No — §261.5 is NOT on the mandatory PC §290 registration list. However, the court may impose discretionary registration under §290.006 upon findings of sexual compulsion or gratification. Charge selection at plea is critical.
Is reasonable mistake of age a defense?
Yes. People v. Hernandez (1964) established that a good-faith, reasonable belief the person was 18 or older is a complete defense to §261.5. This defense is not available in most other California sex offenses.
What is the age of consent in California?
18. California has no 'Romeo & Juliet' exception, but §261.5(b) makes small age-gap cases misdemeanor-only.
Can I be sued civilly under §261.5?
Yes. §261.5(e) authorizes civil penalties from $2,000 to $25,000 depending on the age gap, recovered by the DA on behalf of the minor.
Available 24/7 — Free Consultation
Charged With PC §261.5 in Los Angeles?
§261.5 is one of the few sex offenses without mandatory §290 registration. Rubin Law, P.C. structures pleas to protect your registration status and immigration profile. Call (213) 723-2337.