Rape is defined in the California Penal Code § 261 (Rape defined) as sexual intercourse against the will or without the consent of the other person. Notably, any amount of penetration during intercourse, even if very slight, is sufficient to be considered Rape. It should also be noted that if the person Raped is unconscious from drugs or alcohol or other wise not able to give consent then any penetration of that person can also be considered Rape. Mental Incapacity can also cause an act of sexual intercourse to be considered Rape.
Punishment for each act of Rape (i.e. the person can receive a separate count of rape with its separate punishment for each act of intercourse) can be 3, 6 or 8 years. Sometimes probation can be given for Rape cases.
Under California Penal Code § 261.5 (Unlawful Intercourse) it is unlawful to have sex with someone under the age of 18 years EVEN IF THEY CONSENT TO THE ACT. This is commonly known as “Statutory Rape”. The law dictates that a person under the age of 18 is unable to give consent to sex and thus the person over the age of 18 can be charged with unlawful sexual intercourse. If the minor’s age is within 3 years of the perpetrator then the matter can be filed as a misdemeanor.
If both persons are in high school and one is 18 years of age and the other is 17 years of age this is still considered unlawful sexual intercourse although the District Attorney may exert its discretion in deciding whether or not to file in a situation of that nature as long as consent is present. In fact even if BOTH parties are under the age of 18 and consent is present the District Attorney can still file charges for unlawful intercourse although they may face the problem of deciding who to charge with the crime.
Punishment for unlawful intercourse can run from probation to 2, 3 or 4 years.
Surprisingly, unlawful intercourse is not a crime that requires registration as a sex offender.
IT IS NOT A DEFENSE TO A CHARGE OF UNLAWFUL SEXUAL INTERCOURSE THAT THE PERPETRATOR WAS UNAWARE OF THE VICTIM’S AGE. However, if the perpetrator reasonably believed the person was over the age of 18 then it may be a matter useful in the negotiating of the case.If you are facing Rape or Unlawful Intercourse charges please contact Mr. Bruzzo to discuss your case at (714) 547-4636. Also, be advised that law enforcement often stages telephone calls from the victim to the perpetrator and records them for the purposes of prosecution in these types of cases. You should make no comments to law enforcement until after you speak to Mr. Bruzzo, if at all.