Statutory Rape in California
Popular hookup apps fuel increased risk of statutory rape allegations
If you swipe right for the wrong person, you might soon find yourself in a set of hand cuffs - and not the fur-lined kind.
Dating apps like Tinder, Grindr, Blendr, Hot or Not, and OKCupid are increasingly popular among both adults and minors, and are a favorite hangout for individuals looking for a quick hookup. Anyone using these apps should be aware of the risks of interactions with minors.
In California, it is illegal for any person to have sex with a minor, defined as someone who is under age 18. Those who break the law have committed statutory rape under California Penal Code 261.5, “Unlawful Intercourse with a Minor” – even if the sex was consensual.
Apps like Tinder, Grindr, Blendr, Hot or Not, and OKCupid are becoming increasingly popular among both adults and minors. Because most “hookup” apps do not require the user to verify their age or identity and those that do can easily be accessed by minors using false information, our office has seen a number of 261.5 PC statutory rape cases arising out of the popularity of online hookup apps. If you are an adult who uses a hookup app, consider these tips before your next login:
- Proceed with caution
There is no way to know the real age of any other app user. To avoid violating child pornography laws, never request or send nude photos or suggestive messages to another user without personally verifying the user’s age. In other words, until you are absolutely certain your crush is of legal age, proceed with caution.
- Ask for age first, flirt second
In California, an adult who solicits a minor for sex can face a first-offense fine of $5,000 and/or up to one year in jail. If it is not a first offense, fines and jail times increase. In addition, an adult who solicits a minor living in another state can face federal charges that carry harsher sentences and fines. Because you do not need to actually meet to be charged with solicitation, always ask the other user’s age before planning a meet-up. Although you cannot be sure the other user is telling the truth, asking for age verification may help down the line if you are accused of violating California or federal law.
- Under 18 = illegal
California’s age of consent is 18. A bright line rule is that if one of the parties is under 18, the hookup is against the law and you should stop all communication with the minor immediately. It is worth noting that this holds true even if both parties are under 18. In California it is unlawful for anyone to have intercourse with a minor; even another minor.
- Beware of prostitutes
Prostitutes have turned to hookup apps for easy access to potential clients. Under California Penal Code Section 647(b), the penalty for engaging a prostitute could be six or more months in jail and/or a hefty fine. If another user discusses exchanging sex for money, you should assume they are not joking and stop all communication immediately.
- Minor’s consent and initiation unimportant
Remember that it does not matter if the minor consented to sex or initiated the contact. Under California law, sex with someone under age 18 is statutory rape no matter what.
Penalties for statutory rape under California 261.5 PC
Depending on the circumstances and prosecutor’s discretion, unlawful intercourse with a minor may be charged either as a felony or misdemeanor. The age difference between the defendant and the minor is heavily considered when considering how to charge the defendant. However, if the defendant is 21 or older and the minor is under 16, the crime will be tried as a felony and the sentence may include up to four years in state prison. Adult offenders are also subject to civil penalties under 261.5(e).
Potential penalties for misdemeanor statutory rape include:
- Informal probation
- A maximum one-year county jail sentence
- Up to $1,000 in fines
Penalties for felony statutory rape include:
- Probation (either informal or formal) with up to one year county jail, or jail sentences ranging from 16 months to three years.
- If the defendant was 21 or older and the victim was under 16, the potential sentence is two to four years in jail and up to $10,000 in fines.
Legal defenses against unlawful intercourse with a minor
California 261.5 PC is a “strict liability” crime; there is no mental state element. In plain language, this means that it doesn’t matter whether or not the accused intended to have intercourse with a minor. Not knowing the other person’s age is not a defense, so a “don’t ask, don’t tell” policy does not provide any protection.
The most helpful legal defenses which may sometimes be used to mitigate or avoid statutory rape charges are:
- The accused had an actual, reasonable belief that the victim was 18 or over
- The two parties are married
- No sexual conduct actually occurred