By: Frances Prizzia | Sex Crimes


Handcuffs - California age of consent

Since 2014, California has defined consent as an “affirmative and ongoing” process for any sexual activity. This standard is useful for determining what counts as rape among adults but has no bearing on sexual activities where at least one party is a minor (18 years or younger). California’s age of consent law holds that anyone under 18 cannot consent to sex—so even a “yes” doesn’t count as the affirmative consent lawmakers are looking for. The short version of California’s age of consent law is that anyone who has sex with another person under 18, even if that person is also under 18, has committed a crime. But the issue is much more complex than that.


California law is rather fractured when it comes to addressing sex acts with anyone under the age of consent. The code defining statutory rape does not define sexual intercourse, but the contents of other codes that prohibit sexual assault designate separate consequences for instances of penetrative anal sex where at least one of the parties is under the age of consent. A third set of penalties addresses “oral copulation” and a fourth set covers “lewd and lascivious acts” performed with children under the age of 14.

Looking at the way different sex acts are addressed by our state code, “statutory rape” does not apply to oral or anal sex acts, and the classification of non-penetrative sex acts can be questioned. This makes a bigger difference than you might think, as the law provides different rules and sentences for statutory rape than for other “lewd and lascivious acts” with a minor.


Sexual Intercourse (Statutory Rape)
The charges for having sexual intercourse (presumably, under the state’s definition, penetrative sex between a male and female) are as follows:

  • A misdemeanor if both parties are 3 or fewer years apart in age
  • A misdemeanor or a felony if one party engages in intercourse with someone who is more than 3 years younger than them
  • A misdemeanor or felony if one party is over the age of 21 and the other is under the age of 16

The difference between conviction for a misdemeanor and conviction for a felony is huge; despite the fact that felony violations can lead to sentences of up to three years in jail, some instances of statutory rape may require perpetrators to register as sex offenders. The judge, jury, and prosecution have a large amount of leeway in any statutory rape cases if the parties are more than 3 years apart because the difference between misdemeanor and felony statutory rape has not been codified.

Other Penetrative Sex
Penetrative sex that does not involve vaginal penetration adheres to different statutes and penalties, as oral sex acts. They are charged and punished as follows:

  • Any acts where one or more parties are under 18 are punishable by up to a year in state prison or county jail
  • If one party is over 21 and the other under 16, the adult party is guilty of a felony
  • Engagements with one party who is 10 or more years older than a partner who is under the age of 14 can be punished by 3, 6, or 8 years in state prison

Though similar to statutory rape laws, the state does not distinguish between acts involving people who are less than 3 years apart in age and acts involving people who are more than three years apart in age. Aside from the specific age limits named in the law, all other acts involving minors are prosecuted as misdemeanors.

The 14-Year-Old Rule
You may notice that the statutes for anal and oral sex address any acts with children under 14 years of age, while the statutory rape ones only look at the younger party’s age if the older party is over 21. To reinforce the gravity of engaging in sexual activity with a child under 14 years of age, the state also has another statute that applies to the above laws and expands the definition of sexual activity for this group.

Any person who has sex with a minor under the age of 14 will be charged with a felony and may serve 3, 6, or 8 years in prison if convicted. They will also have to register as a sex offender in California, a requirement that may have devastating effects on their lives and careers.

This rule also gives the state more leeway to convict someone for non-penetrative sex acts, citing any conduct performed “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of either party. The law can therefore cover cases of groping, exposure, or non-penetrative sexual activity.


With the differences in penalties and the fluidity of California law regarding sexual activity with a minor, it’s easy to see how minute details matter in the courtroom. A felony conviction, not to mention registration as a sex offender, can ruin your life forever. If you’ve been accused of engaging in sexual activity with a minor, it’s essential to hire a lawyer who can give your case personalized attention. The Law Office of Frances Prizzia defends our clients aggressively, protects their rights and uses all the resources at our disposal to improve their results.

Contact The Law Office of Frances Prizzia online or call (714) 362-0157 to speak to a criminal defense attorney today.

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