Reply #19: Yes. [View All]

[TexasObserver]

Been practicing three decades, state and federal courts.

I tried to read everything available on this incident before concluding what will likely happen. The state of California does not consider a violation of California Penal Code section 261.5 (Unlawful Sexual Intercourse) an offense which requires registration as a sex criminal. The provisions are mainly applicable to adults having sex with minors, or older minors having sex with younger minors.

It's not a crime that is enforced between consenting teens of similar age, as here. I would defer to the judgment of a California attorney on this incident, however. Those in the state can best say what it will do. It's up to the local DA, and there has already been a news report in which the DA is alleged to have said they don't prosecute such cases absent coercion. There are probably a million kids aged 14 or 15 in California. If 40% of them are having sex, that's 400,000 teens just in that age group.

I have not read the legislative history of the act, but I can't imagine it was intended for the prosecution of similarly aged boyfriends and girlfriends.

California Penal Code section 261.5

(a) 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. For the purposes of this
section, a "minor" is a person under the age of 18 years and an
"adult" is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older or
three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
(d) Any person 21 years of age or older who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years of age
is guilty of either a misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison for two, three, or four years.
(e) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in the
following amounts:
(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).
(B) An adult who engages in an act of unlawful sexual intercourse
with a minor at least two years younger than the adult is liable for
a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse
with a minor at least three years younger than the adult is liable
for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in the
State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.


California Sex Crime Registration

Registrable Sexual Offenses (does not include section 261.5)


187 MURDER DURING PERPETRATION/ATTEMPT RAPE,286,288,288A,289
207 KIDNAPPING TO COMMIT 261, 286, 288, 288a, 289
207(B) KIDNAP CHILD UNDER 14 YEARS TO COMMIT LEWD OR LASCIVIOUS
208(D) KIDNAPPING PERSON WITH INTENT TO COMMIT RAPE (PRIOR CODE): KIDNAPPING VICTIM UNDER 14 WITH THE INTENT TO VIOLATE SECTIONS 261, 286, 288, 288a, OR 289.
209 KIDNAPPING FOR RANSOM TO COMMIT 261, 286, 288, 288a, 289
220 ASSAULT TO COMMIT RAPE, SODOMY, OR ORAL COPULATION OR TO VIOLATE SECTIONS 264.1, 288 OR 289.
220(a) ASSAULT W/INTENT TO COMMIT RAPE, SODOMY, OR ORAL COPULATION
220(b) ASSAULT W/INTENT TO COMMIT RAPE/ETC DURING A BURGLARY
220/261 ASSAULT TO COMMIT RAPE
220/261(2) ASSAULT TO COMMIT RAPE BY FORCE OR FEAR
220/664.1 ASSAULT TO RAPE IN CONCERT WITH FORCE OR VIOLENCE
243.4 SEXUAL BATTERY
243.4(A) SEXUAL BATTERY
243.4(B) SEXUAL BATTERY ON MEDICALLY INSTITUTIONALIZED PERSON
243.4(C)PC (PRIOR CODE) SEXUAL BATTERY INVOLVING RESTRAINED PERSON
243.4(C) SEXUAL BATTERY VICTIM UNAWARE-FRAUDULENT MISREPRESENTATION.
243.4(D) SEXUAL BATTERY INVOLVING RESTRAINED PERSON
243.4(D)(1) (PRIOR CODE) TOUCH PERSON INTIMATELY AGAINST WILL FOR SEXUAL AROUSAL/ETC
261 RAPE: NOT SPECIFIED
261(1) RAPE: VICTIM INCAPABLE OF GIVING CONSENT
261(2) RAPE BY FORCE OR FEAR
261(2)/264.1 RAPE IN CONCERT BY FORCE
261(3) RAPE OF DRUGGED VICTIM
261(4) RAPE: VICTIM UNCONSCIOUS OF THE NATURE OF THE ACT
261(6) RAPE BY THREAT OF RETALIATION
261(A)(2) RAPE BY FORCE OR FEAR
261(A)(3) RAPE OF DRUGGED VICTIM
261(A)(4) RAPE: VICTIM UNCONSCIOUS OF THE NATURE OF THE ACT
261(A)(6) RAPE BY THREAT OF RETALIATION
261.2 (PRIOR CODE) RAPE BY FORCE OR FEAR
261.2/261.3 (PRIOR CODE) RAPE WITH FORCE AND OR THREAT
261.3 (PRIOR CODE) RAPE BY FORCE OR VICTIM INTOXICATED.
261.4 (PRIOR CODE) RAPE BY THREAT OR RAPE OF A DRUGGED VICTIM.
262(A)(1) RAPE SPOUSE BY FORCE OR FEAR (FELONY CONVICTION)
264.1 RAPE IN CONCERT WITH FORCE OR VIOLENCE
266 ENTICE MINOR FEMALE FOR PROSTITUTION
266C INDUCE INTERCOURSE OR SEX ACTS BY FALSE REPRESENTATION WITH INTENT TO CREATE FEAR
266I(B) PANDERING WHERE PROSTITUTE IS UNDER 16
266J PROCUREMENT OF UNDER 16 FOR LEWD AND LASCIVIOUS ACTS
267 ABDUCT MINOR FOR PROSTITUTION

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