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Understanding the distinctions between various offenses is paramount, particularly when it comes to crimes as serious as rape and statutory rape. While both involve non-consensual sexual acts, they differ significantly in their legal definitions, consequences, and the underlying circumstances that lead to criminal charges.

The primary focus of this article is to highlight the difference between statutory rape and rape. Get in touch with us at Manshoory Law Group if you have been charged with any of these offenses. We will help you build a solid defense strategy. Call us at (877) 977-7750 for a free consultation. 

What is Statutory Rape?

In California, statutory rape refers to consensual sexual activity between an adult and a minor who cannot legally consent to sexual intercourse. The age of consent in the state is 18 years. Therefore, engaging in sexual intercourse with someone under 18, even if the minor willingly participates, is considered statutory rape.

California Penal Code Section 261.5 outlines the specifics of statutory rape. According to this statute, unlawful sexual intercourse occurs when an adult (age 18 or older) engages in consensual sexual activity with a minor (under 18). The law acknowledges that the child may willingly participate, but the rationale is that the minor lacks the legal capacity to provide valid consent.

Note that there are no “Romeo and Juliet” laws in California. Sexual activity with a minor is always illegal, even if you are close in age. 

The Penalties for Statutory Rape

Statutory rape can be charged as either a misdemeanor or a felony. You will most likely be charged with statutory rape as a misdemeanor if the age difference between you and the victim is not more than three years. As a misdemeanor, statutory rape attracts a jail sentence of up to one year

On the other hand, if the age difference between the adult and the minor is greater than three years or if the minor is under 16, statutory rape is typically charged as a felony. Felony statutory rape convictions can lead to more severe penalties, including a state prison sentence of up to four years. 

Statutory rape

What is Rape?

California Penal Code 261 defines rape as the act of engaging in sexual intercourse with another person under any of the following circumstances:

  • Lack of consent — The sexual intercourse was committed against the other person’s will or under conditions in which the perpetrator knew or reasonably should have known that the other person was incapable of giving legal consent.
  • Force or fear — The act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
  • Incapacitation — The victim was prevented from resisting due to intoxication, unconsciousness, or any other condition rendering them incapable of giving legal consent.

Consent is a crucial element in California’s legal definition of rape. If a person does not willingly and voluntarily agree to engage in sexual intercourse, it may be considered rape under the law. Moreover, using force, fear, or taking advantage of the victim’s incapacitation is treated seriously and may lead to rape charges.

The Penalties for Rape

In California, rape is categorized as a felony. The punishment for rape typically includes a state prison sentence of three, six, or eight years and mandatory registration as a sex offender for life. 

However, if the victim was a minor under 14, you may receive a state prison sentence of up to 13 years. Moreover, the judge will lengthen your imprisonment term to up to 11 years if the victim was between 14-17 years old. You may also receive an additional three- or five-year prison term if the victim suffered great bodily injury due to your actions. 

A rape conviction is also considered a strike under California’s Three Strikes Law. If you get convicted of another serious felony later, your penalty will be automatically doubled. Then, if you pick up a third conviction of another serious felony, you may get up to life in prison. 

Difference Between Rape and Statutory rape

Statutory rape and rape, both encompassing non-consensual sexual activity, differ significantly in their legal definitions, the role of consent, the age of involved individuals, and the corresponding penalties. Below, we discuss the difference between rape and statutory rape: 

Statutory rape pertains to engaging in sexual intercourse with a minor below the legal age of consent, regardless of the minor’s willingness. The focus here is on the age of the individuals rather than the use of force or coercion

Conversely, rape involves engaging in sexual intercourse without the other person’s explicit consent. This is normally achieved through force, violence, or coercion.

Difference Between Rape and Statutory rape

Consent holds no legal standing in statutory rape cases. Even if the minor willingly participates, the law deems it non-consensual due to the minor’s inability to provide valid consent. In contrast, the presence or absence of consent is central in distinguishing consensual acts from rape.

Age of the Individuals

Statutory rape centers around the age difference between the parties, focusing on whether one person is below the legal age of consent. In contrast, the age of the individuals is not determinative in rape cases, where the primary consideration is the issue of consent and the potential use of force or coercion.


Statutory rape is categorized as a wobbler, meaning it can be charged as either a misdemeanor or a felony. The severity of the penalties varies based on the circumstances of the case. 

In contrast, rape is classified as a felony with more severe consequences. Penalties for rape may include imprisonment in state prison for up to eight years, mandatory sex offender registration for life, and other potential legal ramifications.

Defending against statutory rape and rape charges requires a comprehensive legal strategy, as these are serious and complex criminal offenses. The specific approach will depend on the unique circumstances of the case, but here are some common defense strategies:

  • Consent — In rape cases, consent is a central issue. If you can establish that the sexual activity was consensual and that the other party willingly participated, it can be a crucial defense. Gather evidence that supports the presence of genuine consent, such as communication records or witness statements. However, consent is not a valid defense in statutory rape cases. 
  • Age of consent — In statutory rape cases, proving the alleged victim was 18 years or above can be a strong defense.
  • Alibi — If you prove that you were not present at the location or time the alleged offense occurred, this can be a strong alibi defense.
  • Insufficient evidence — Your attorney can challenge the prosecution’s evidence by highlighting inconsistencies, unreliable witnesses, or lack of physical evidence.
  • Illegal search and seizure — Evidence obtained through an unlawful search or seizure may be inadmissible in court. Challenging the legality of the evidence can be a viable defense strategy.

Sometimes, negotiating a plea bargain may be in your best interest, such as a lesser offense or less severe penalties. This can be a strategic way to minimize the potential consequences.

The best way to build a solid defense is to consult a qualified criminal defense attorney specializing in sexual assault cases. An experienced attorney will assess the specific facts of your case, craft a strong defense, and represent your interests in court.

Need an Experienced Criminal Defense Attorney? Contact Us Today for a Free Consultation 

At Manshoory Law Group, we specialize in criminal defense. We can provide expert guidance for individuals facing California statutory rape and rape charges. Our experienced attorneys are committed to safeguarding your rights, constructing a compelling defense, and pursuing the best possible outcome for your case. 

Contact us today for a free, confidential consultation, and let us stand by your side as you navigate the legal complexities ahead. Call us at (877) 977-7750.

Shaheen Manshoory
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