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California Laws Against Unlawful Sexual Intercourse

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Article 16-04

¡No Se Deje!

Many immigrants come from countries where the laws, customs, are significantly different from our Federal and State laws.  This can be especially confusing in cases involving sexual relations with a minor.  Immigrants should make sure to know the law that will be applied to them, and their conduct, if they are having sexual relations with a minor, which is defined in California as, a person less than 18 years of age.  Male minors are also protected under the law and women can also be perpetrators.

Penal Code section 261.5 states that it is considered unlawful sexual intercourse to have sexual relations with a minor who is not the spouse of the perpetrator.  If the age difference between the parties is less than 3 years, the crime is a misdemeanor.  If the minor is more than 3 years younger than the perpetrator, the case can be filed as either a misdemeanor or a felony.  This law usually involves minors who are 14, 15, 16, or 17 years old.  If the minor is less than 14 years old, the case is usually filed as a child molestation crime.  The punishment increases as the age of the minor decreases.

Any person 21 years of age or older, who engages in unlawful sexual intercourse with a minor who is less than 16 years old, is guilty of either a misdemeanor or a felony.  In this case, the punishment can be either not more than one year confinement in a county jail or confinement in state prison for two, three, or four years.  And, anyone convicted of unlawful sexual intercourse with a minor must register as a sex offender for the rest of his or her life.

An adult, who has unlawful sexual relations with a minor less than two years younger, could be liable for up to $2,000.  If the minor is more than two years younger the penalty is $5,000 and if the minor is more than three years younger the penalty is $10,000.  If the perpetrator is at least 21 years old and the minor is less than 16 years old, the penalty is $25,000.

I met with Orange County District Attorney, Tony Rackauckas and two of his senior Assistant District Attorneys. They indicated that, in cases involving Latino families, the feelings, opinions, and preferences of the families are considered important and do often influence the decision regarding filing criminal charges.  Even in this situation, prosecutors urge the parents and family to take steps to ensure that unlawful sexual relations are not allowed until the minor becomes an adult or there is a lawful marriage.

It is important to note that when an adult is much older than the minor or when the adult is in a position of trust such as a pastor, priest, minister, doctor or counselor, the interests of society and of the parties are best served by use of the criminal justice system.  Punishing those that violate our laws, which are based on our values, helps to discourage similar conduct by the convicted criminal and others.  It also provides protection for the intended beneficiaries of this law, minors and their families, the victims of unlawful sexual intercourse. ¡NO SE DEJE! ®

JESS J. ARAUJO, ESQ.