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The Legal Perspective and California Underage Sex Laws

Confusion is understandable. When reading laws, you have to read them very carefully to get the exact meaning. With regard to penalties the laws reads this way: Section 261.5 (A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).

Parents can file complaints with police and request protective orders if necessary. Ultimately, any criminal charges, if any, will be filed by the prosecuting attorney in the District attorney's office. Parents do not technically "press charges". The charges are determined by the prosecuting attorney assigned to the case and are based on the findings of an investigation. The minor does not have to testify or even cooperate for the DA to make a case. Many do not. Many things depend on the parents report, the circumstances that lead up to it, whether the two were caught in the act, etc... Each case is treated independently. The circumstances of each case are looked at closely. Anyone can report the crime and anyone can answer questions about the parties involved if asked by authorities. People can speculate about many things and take many risks. The bottom line for any prosecutor is defined clearly within the law. In California, an adult can be prosecuted for having sex with a minor. A minor is defined as anyone under the age of 18. 17.5 qualifies as a minor. There are many cities, counties and prosecuting attorney's in the state of California. There are working prosecutors who will prosecute a case even when the victim is 17.5 years of age. The 23 year old friend is putting himself at risk legally. The age difference alone would put this in a more serious catagory with a potentially large fine.

Yes. It is possible. It is a parents legal right and responsibility to contact police and file a report if they believe their minor child is being put at risk by another person. In this situation, it is a crime in the state of California for a 21 year old to have sexual contact with a 16 year old minor. If sexual contact is suspected, a parent or any person can report it to police at any time. A parent doesn't actually take anyone to criminal court to press charges. Only the California prosecuting attorney can make the decision to file charges against an offender and seek a conviction. This decision is generally based on the findings of an investigation after a parent files a report/complaint with police. A parent has no control over what actions the District Attorney takes once a report is filed.

The statute of limitations to bring prosecution against a person depends on whether the charge is for a misdemeanor or a felony violation. In your situation given the age difference between you, if the DA decided to file charges it could be either one; a misdemeanor or a felony according to the statute 261.5. Violation of Penal Code section 261.5(b) is a misdemeanor and has a one year statute of limitations. Violation of Penal Code section 261.5(d) is a straight felony and has a three year statute of limitations. The statue of limitations runs from the date of the offense, regardless of when it is reported. If charges are filed, it is in your best interest to seek representation from a criminal defense attorney who specializes in sexual offense cases. There are many to choose from and generally one to fit all budgets.

There is no law prohibiting an adult from dating a minor where NO sexual contact exists. "Sexual contact" is defined in the Civil and Penal code toward the end of this response: Two points of caution: 1. When any adult is pursuing a non-sexual "dating" relationship with a minor, the adult should consider that a "minor" remains within the legal control of the parents until they are 18 years of age. The parents have a legal "right" to say "NO" to an adult (or anyone) seeking to pursue a dating relationship with their minor child. If the parents have not been consulted and they later find out, legal issues may arise as a result. 2. If an adult continues to pursue a dating relationship with a minor after a parent has forbidden the arrangement, the parents are within their rights to take legal action to prevent it. There is no predetermined outcome as each situation is unique to the people involved and the prevailing laws.

Civil code 43.91

Penal code 243.4

Yes. If any one suspects it and files a complaint, or, if the two of you are caught together by the authorities, it would likely be the older (16 year old) who would be investigated and charged. In a situation like this, it may go straight through the juvenile justice system or it could be recommended to adult court depending on previous history. It's speculative.

There really is no way to answer your question with any accuracy. We'd be guessing at best and could be completely off base. These situations are handled in the prosecutors offices and judges chambers on a case by case basis. It's simply not possible to give you an "absolute" or even a guess on what a judge or prosecutor may or may not do. Your best possible chance at getting an answer to this question would be to discuss the situation with a local criminal attorney who handles sex offense cases. Sorry we can't be more helpful to you.

How this is handled would be at the discretion of a juvenile court judge and the DA's office. Juvenile cases are closed from public view. There is really no way to speculate on what "might" happen with any accuracy. This could be handled within the juvenile court system or, it's possible the judge may recommend the case be heard in adult court. As far as proving whether consent was given, this may come down to being "your word against his", unless someone else was witness to the events. Registration as a sex offender is determined based on what you are finally convicted of. If you are convicted under section 261.5 "Unlawful Sexual Intercourse" you would NOT be required to register as a sex offender in the State of Californa. If it is determined to be a forceable or violent sexual act and you were convicted under a different sexual offense statute, it is highly likely that you would be required to register as a sex offender for a specified period of time. If charges have been filed against you, it is in your best interest to seek advice from a criminal defense attorney in California who specializes in sex offense cases.

A minor under the age of 18 legally can not consent to sexual activity. The parents can file a complaint against you with the authorities and the complaint will be reviewed by the prosecutors office. Generally, no testimony is required by the minor. If the prosecutors office determines there is cause to arrest and prosecute you for unlawful sexual intercourse, you will most likely receive "Notice to Appear" through the mail and/or they will issue a bench warrent for your arrest and you may be picked up by a sherrif. This depends on local procedure. Given that you are less than 3 years older than the minor, under the California penal code this would be classed as a misdemeanor offense; unless you have previous criminal history of sexual offense or felony violations; in which case it could be classed as a more serious offense. If convicted of a misdemeanor, you may get probation or up to 1 year in jail. If you are more than 2 years older than the minor, you may also be fined up to $5000. If convicted for a violation of "Unlawful Sexual Intercouse" under California penal code 261.5, you are NOT required to register as a sex offender in the State of California. If, however, you move to another state where the same or similar violation requires you to register as sexual offender, you may be required by law to contact the sheriff in the county of the state where you will reside to explain the circumstance of your arrest. They must be the ones to determine whether registration as a sex offender is required in their state or not. Yes, the parents may have cause to file for a restraining order against you. If a restraining order is granted, you will be served with the order by a sherrif or an officer of the court. The order will spell out in great detail the provisions to be followed. You will have up to 60 days to contest the order but the order will be in full effect the moment it is served. If the order is violated by you, or by the 16 year old, you will be arrested for contempt of court and you will be encarcerated.

California Penal Code: Section 261.5 Unlawful Sextual Intercourse