November 14, 2007 By Wallin & Klarich

Under California Law, it is illegal for any person to have consensual sex with any person who is under the age of 18. The applicable statute in California is penal code section 261.5, or “unlawful sex with a minor”. It is important to understand that as the disparity in age between the alleged victim and the defendant increases, so does the potential punishment the defendant faces in criminal court. If the age difference is not more than three years, the crime is a misdemeanor. If the age difference is more than three years, the crime is a wobbler, which means that it could be charged as a misdemeanor or a felony.

California is one of the few states in the country that does recognize that an actual and reasonable belief by the defendant that the alleged victim was 18 or older is an affirmative defense to the crime of unlawful sex with a minor. Many states don’t recognize this defense and that is why this crime has become commonly known as “statutory rape”. However, because California does recognize this affirmative defense to this crime, it is vitally important to consult a competent sex crime defense attorney who knows how to use defenses such as this in conjunction with a number of other legal tools to get you the best result possible in your criminal case.

It should be noted that if the alleged victim is under 14, then this type of crime falls under the child molestation laws and there is no affirmative defense and the potential punishments are far more serious. In either case, you should contact a criminal defense lawyer at Wallin & Klarich to help you with your legal problem. With 30 years of experience in handling these cases and an A/V rating, you are assured to get the best possible legal advice and representation.

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