The “Age of Consent” in California – 18 Years Old

What is the age of consent in California?

In California, a person must be at least 18 years of age to be legally capable of consenting to have sex. This means that it is illegal to have sex with a minor under 18, even if the minor is a willing participant and even if the minor initiates the sexual activity.

Here are three key things to know:

1. Having consensual sex with a minor in California is generally prosecuted as statutory rape under Penal Code 261.5 PC.
2. Statutory rape can be a misdemeanor carrying up to 1 year in jail or a felony carrying up to 4 years in jail depending on the parties’ ages.
3. California has no Romeo and Juliet exception allowing for consensual sex between close-in-age minors and adults.

Our California criminal defense attorneys will address the following in this article:

• 1. The Age of Consent – 18 Years Old
• 2. Statutory Rape
• 3. Sex Offender Registration
• 4. No “Romeo and Juliet” Law in California
• 5. Exception for Married Persons
• 6. Dating Minors
• 7. Defenses to Statutory Rape
• 8. Related offenses and penalties
• Additional resources

1. The Age of Consent – 18 Years Old

18 years of age. Under California law, a person must be at least 18 years old to legally consent to sex. People who have sexual intercourse with a minor face criminal charges, typically for statutory rape, per Penal Code 261.5.

“Sexual intercourse” means any sexual penetration, no matter how slight, of the vagina (“vaginal intercourse”) or genitalia by the penis. Ejaculation is not required.¹

Age of consent laws are meant to deter adults from seeking out underage sex partners who are not mature enough to make intelligent and informed decisions regarding the physical and emotional risks of having sex.

The age of consent varies state by state from 16 to 18 years of age across the U.S.

2. Statutory Rape

Under California Penal Code 261.5 PC, a “statutory rape” takes place when any person engages in sexual intercourse with a person under the age of 18.² Statutory rape is also called

• unlawful sex with a minor or
• unlawful sexual intercourse.

Statutory rape is a crime regardless of whether the sex was consensual or initiated by the minor (the supposed “victim” of the crime).³

Statutory rape is a California “wobbler” offense, which means it can be prosecuted as either a misdemeanor or a felony depending on the parties’ ages.⁴

PC 261.5	Maximum criminal penalties
Defendant is no more than 3 years older than the minor	Misdemeanor: 1 year in jail and/or $1,000
Defendant is more than 3 years older than the minor	Misdemeanor: 1 year in jail and/or $1,000 or Felony: 16 months, 2 years, or 3 years in jail and $10,000
Defendant is at least 21, and the minor is under 16	Misdemeanor: 1 year in jail and/or $1,000 or Felony: 2, 3, or 4 years in jail and $10,000

3. Sex Offender Registration

A statutory rape charge, or a conviction of the same, does not require sex offender registration under California Penal Code 290 PC.⁵

Certain related offenses, though, do require the defendant to be on the sex offender registry, including:

• rape, per Penal Code 261, and
• lewd acts with a child, per Penal Code 288.

Now with the passing of California Senate Bill 145 (2020), judges may waive the sex registration requirement for certain defendants convicted under the following Penal Code subsections if the child was a 14-year-old (or older) and within 10 years of age of the defendant:

1. PC 286(b) – sodomy
2. PC 287(b) – oral copulation of a child
3. PC 289(h) or (i) – penetration by a foreign object

SB 145 is geared toward close-in-age LGBT youth who have consensual oral sex or anal sex. Opponents of the new law claim it promotes pedophilia and sexual abuse.

4. No “Romeo and Juliet” Law in California

California does not have a Romeo and Juliet law. “Romeo and Juliet” laws are also referred to as “close in age exemptions.” The laws prevent the prosecution of young people who engage in consensual sex acts when:

• both parties are very close in age to one another, and
• both are below the age of consent.

An example here is when two people engage in consensual sex and both are 17 years old, or one is 16 years old and the other is 17.

Since there is no Rome and Juliet law in California, it is possible for two people, both under the age of 18, to be prosecuted for statutory rape if they engage in sexual intercourse.

5. Exception for Married Persons

There is one exception where a minor can have sexual intercourse with an adult. This is when the two parties are married.

Penal Code 261.5a states:

“Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.”

Note that California is one of just a few states that does not have a minimum age for marriage. If a minor decides to marry, however, that person must obtain parental consent and a court order prior to the marriage.

6. Dating Minors

While it generally is legal for an adult to date a minor, an adult may not do any of the following with the minor:

• have sex,
• purchase for or share alcohol or cigarettes,
• bring the minor to an R-rated movie, and
• show any pornography.

7. Defenses to Statutory Rape

In our experience, from representing thousands of people facing sex crime charges, there are four effective legal defenses to accusations of statutory rape. These are:

1. The defendant was falsely accused – Perhaps the alleged victim misidentified the defendant or lied.
2. No one was under 18 – The parties that engaged in sexual intercourse were at the age of consent or older.
3. No sexual intercourse occurred – While two persons under 18 may have had an intimate encounter, they did not engage in “sexual intercourse.”
4. The defendant had a good faith belief the child was an adult – This defense works in statutory rape cases but not lewd and lascivious conduct cases.⁶

Note that consent is not a defense to statutory rape allegations.⁷

In any case, the district attorney has the burden to prove guilt beyond a reasonable doubt. As long as prosecutors fail to meet this burden, the charge should be dismissed.

8. Related offenses and penalties

There are several offenses in addition to statutory rape that criminalize sex acts with someone under the age of consent:

California child sex crime	Incarceration penalty
Lewd and lascivious acts with a minor (PC 288) – molestation of a child under 16	Felony: 3, 6, or 8 years in state prison if the child was under 14 and no force was used Felony: 5, 8, or 10 years in state prison if the child was under 14 and force was used Felony: Up to life in prison if the child was under 14 and sustained bodily harm Up to 1 year in jail (misdemeanor) or 1, 2, or 3 years in jail (felony) if the child was 14 or 15 and the defendant is at least 10 years older
Oral copulation with a minor (PC 287) – oral sex with a minor	Up to 1 year in jail (misdemeanor) or 16 months, 2 years, or 3 years in jail (felony) if the victim was at least 16 or the defendant was no older than 20 Felony: 16 months, 2 years, or 3 years in jail if the victim was under 16 and the defendant was over 21 Felony: 3, 6, or 8 years in prison if the victim was under 14 and the defendant is more than 10 years older
Aggravated sexual assault of a child (PC 269) – sex acts with a child under 14 and at least 7 years younger than the defendant	Felony: 15 years to life in prison
Continuous sexual abuse of a child (PC 288.5) – at least three instances of sexual abuse with a child under 14 during the course of at least three months by someone with access to the child	Felony: 6, 12, or 16 years in prison
Sex with a child under 10 (PC 288.7) – penetration, sodomy, or a oral copulation with a child under 10	Felony: 15 years to life in prison if there was oral copulation or sexual penetration Felony: 25 years to life in prison if there was sexual intercourse or sodomy

Additional resources

For more in-depth information on the age of consent, refer to these scholarly articles:

• Teenage Sex in California: Thirteen Years after Michael M. – Journal of Juvenile Law.
• Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and a Call for Reform – University of Missouri-Kansas City Law Review.
• The Age of Consent – Yale Law Journal.
• You Can Touch, But You Can’t Look: Examining the Inconsistencies in Our Age of Consent and Child Pornography Laws – Southern California Law Review.
• A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to the Age of Consent – Journal of Law and Politics.

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