The difference between rape and statutory rape lies in whether the victim can legally consent to the sexual act. Allegations of rape involve non-consensual sex with a person who is otherwise legally capable of consenting. Allegations of statutory rape involve sex with a person who cannot legally consent because of being below the age of consent.
Some states make exceptions for young people who are close in age to each other. These are known as Romeo and Juliet laws. Other states, like California, do not have these exceptions to these sex offenses.
Rape is the sexual offense of having non-consensual sexual intercourse through the use of force, threats, or fraud. 1
In California, sexual intercourse is the sexual penetration of the vagina or genitalia by the penis. 2
Ejaculation is not required for it to amount to rape. However, sexual contact that does not involve this penetration is not rape. If it is non-consensual, however, it can still amount to sexual assault.
Statutory rape is different from rape in that the element of consent is not an issue.
The classes of people covered by a statutory rape law are legally unable to consent to sexual intercourse. Even if they say that they are consenting and willing to engage in sexual activity – or even if they initiate the sexual act – there is still no legal consent.
The following classes of people are often covered by a state’s statutory rape law, leaving them unable to consent to sexual relations:
Because these people are legally unable to consent to sex, any sexual activity with them is considered non-consensual. Because it is always non-consensual, it is always rape.
In cases involving underage victims, statutory rape can also lead to allegations of child abuse and sexual abuse, as well as criminal charges for child molestation.
The age of consent is the age at which a person obtains the ability to consent to sexual activity. Anyone under the age of consent cannot consent to sexual activity, even if they are merely days or hours from becoming old enough.
In some states, including California, the age of consent is 18 years old. In many other states, a 16-year-old is over the age of consent.
Many states recognize a close-in-age exception to statutory rape. Also known as a Romeo and Juliet law, these exceptions protect defendants with a close age difference with the alleged victim.
For example, Texas has a Romeo and Juliet law. This law says that people between 14 and 17 years old can consent to sexual conduct, so long as:
The purpose of these laws is to decriminalize teenage sex. Without them, a 15-year-old could face criminal charges for a serious sex crime if they have intercourse with their high school sweetheart.
California, however, does not have a Romeo and Juliet law.
Differences in state law will determine whether the penalties for rape and statutory rape are the same.
In California, for example, rape is a felony, while statutory rape is a “wobbler” that can be charged as a felony or a misdemeanor, depending on the circumstances.
For a conviction for rape, the possible prison sentence can be up to 8 years in prison, 4 plus another 3 to 5 years if the victim suffered great bodily injury. 5 Prison time can also increase if the victim is a minor. 6 The defendant will also have to register as a sex offender.
For a felony conviction for statutory rape, the prison sentence can be up to 2, 3, or 4 years in prison. 7 A conviction for statutory rape, alone, does not require sex offender registration.
However, statutory rape charges often come with other serious allegations, as well. Some of these are very serious, like child molestation or lewd and lascivious acts with a child. These can drastically increase the potential jail sentence, possibly up to a life sentence. They can also require lifetime registration as a sex offender. 8
In California, statutory rape is defined as unlawful sex with a minor under 18 years of age.
Unlike in many other states, non-consensual sex with someone who is mentally or physically incapacitated is considered rape in California, rather than statutory rape.
Also unlike many other states, California has no close-in-age exception, or Romeo and Juliet law. However, while law enforcement can charge statutory rape as either a felony or a misdemeanor, they can only charge it as a misdemeanor when the age gap between the two people is no more than 3 years.
Also see our article on rape vs sexual assault.
For more information, refer to the following:
Legal Citations:
