The California laws regarding Sex Crimes, especially those that are registrable sex offenses under Megan’s Law, can stir powerful debates in this state for various reasons. Some consider them to be outdated and out-of-touch with the realities of sexual activity in contemporary society, where it is arguably commonplace for teenage minors to engage in sex with each other in their parents’ homes, where it may be routine practice to have sex when you’re drunk with your girlfriend or boyfriend or even somebody you just met in a bar, where it is not unusual to see public nudity on California’s college campuses on the first rain of the season or on California’s public beaches or big city parks, or where various shocking fetishes and sado-masochistic practices may be more popular in certain social circles especially in edgy metropolitan areas such as San Francisco or Los Angeles.

The Basics of California Rape Laws

Force, Consent, Positive Cooperation, Intoxication, and Feelings of Outrage:

Let’s look at the basic California rape laws with which some of us may already be familiar by way of popular notions of ‘what rape is’. Penal Code sections 261 and 262 generally define rape as non-consensual sexual intercourse in various conditions, including but not limited to:

• “where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another”;

• where a person is prevented from resisting the perpetrator by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused; or

• where a person is at the time unconscious (e.g., asleep, among other forms of unconsciousness defined by the statute), of the nature of the act, and this is known to the accused.

Penal Code section 263 elaborates that “the essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.”

And Penal Code section 261.6 defines consent “to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue …”

So pursuant to these basic California rape statutes, if a person is intoxicated to a certain degree, even if he or she eagerly consents to and/or initiates the sexual activity, this may constitute rape or sexual assault even if the perpetrator was himself or herself somewhat intoxicated too. Similarly, if someone has vaginal-penal sex or oral sex with their sleeping partner, this too may be considered a crime, even if your partner knows about such acts and appreciates them.

More controversial still may be Penal Code section 263’s arguably vague definition of rape, hinging the crime on “feelings” of “outrage” experienced by the victim. Then, Penal Code section 261.6’s notions of “positive cooperation” and “knowledge of the nature of the act” may cause particular problems to otherwise well-intentioned sex partners who are experimenting in the bedroom, lovers with a sex partner who prefers a more submissive or less expressive sexual role, and other imaginable issues that test the borders of what “positive cooperation” and “knowledge of the nature of the act” really mean or could mean to a jury deciding your guilt or innocence when something has gone wrong between you and your sex partner, even if it’s months after the relationship is over and has nothing to do with the sex act in question itself.

This is exactly the problem highlighted by critics of the wording of our state’s sex crime laws. The California Penal Code’s controversial definitions of rape and sexual assault have given way to allegations of sex crimes that some have argued are based on the vengeful, deceitful, or illegitimate motivations of jilted lovers or loving relationships that have soured. There are dozens of news stories every year recounting the specifics of such courtroom sex crime dramas, causing gossip and arguments among friends, coworkers, and family members debating whether the alleged victim is concocting the entire rape accusation simply because he or she had a change of mind after the fact, is trying to elicit a money settlement from the accused, is angry at the alleged perpetrator because he or she moved on to another relationship or because they argued about some other matter, is embarrassed for having had consensual sex with the accused, or is trying to gain the upper hand in a child custody battle in court. This last example is particularly problematic as it occurs far too often, it seems, that in Family Court in California wholly unevidenced and potentially spurious allegations of sexual abuse of the couple’s child or of one of the spouses are raised by the viciously sparring litigants.

Sexual Taboos and California Sex Crime Law

The reality is that in California, be it in more risqué metro areas, deceptively mainstream picket-fence suburbs, or backwater ranch country, there are normal, everyday people with taboo sexual inclinations — couples who consensually practice sado-masochism, people who consensually act out rape fantasies, minor teens who regularly engage in polyamourous sexual relationships with other minor teens or adults, and people who have group sex parties with strangers at private homes or public sex clubs. While many people may consider such sexual acts to be disgusting or perverse, this raises the philosophical question as to whether it is legitimate or appropriate for the state to scrutinize and/or penalize such behavior.

One such interesting statute makes incest a crime including between consenting adults and their half-siblings. Penal Code section 285 states that “[p]ersons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison.” This statute is read in combination with CA Family Code section 2200, which states: “Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.” What is controversial about this statute is that it interferes with and penalizes the sexual decisions of consenting adults, not to mention its interesting limited application of its rule only to minors who are 14 years-old or older.

Another arcane statute targets zoophiles — people who may regularly or even just once sexually interact with animals such as the infamous anal gerbil, the lonely shepherd’s goat, or the shocking peanut-butter dog! Penal Code section 286.5 states that “[a]ny person who sexually assaults any animal protected by Section 597f for the purpose of arousing or gratifying the sexual desire of the person is guilty of a misdemeanor.”

California Juvenile Sex Crime Law and Statutory Rape

California Penal Code section 261.5 makes it a misdemeanor or felony for anyone, including another minor, to have consensual sex with a minor under 18 years of age. Specifically California Penal Code section 261.5 states:

“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 pursuant to subdivision (h) of Section 1170.

(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 pursuant to subdivision (h) of Section 1170 for two, three, or four years.”

Thus, one may be shocked to discover that in California it is illegal for two consenting minors, people under the age of 18, to engage in any sexual activity. This means that if you’re 15 years-old and have consensual sex with a 17 year-old, you may both be guilty of a misdemeanor. If you’re 13 years-old and have consensual sex with a 17 year-old, the 17 year-old may be guilty of a misdemeanor or felony. If your parents consent to or know about your sexual activity involving a minor, they may be violating the law too.

Penal Code section 272, working in conjunction with Welfare and Institutions Code section 300, makes it illegal for any person, parent, or minor to cause or tend to cause their own minor child or another minor to participate in any sex act as defined by the various relevant sections of the California Penal Code such as those discussed above. Under this statute, for example, if a parent allows their own minor child to have sex with the child’s minor girlfriend or boyfriend, this would be illegal.

Penal Code section 288 makes it a felony to willfully and lewdly commit any “lewd or lascivious act” upon or with the body, or any part of member thereof, of a child under 14 years old, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, even if the perpetrator is him/herself a minor. Thus, kids who play ‘spin the bottle’, ‘truth or dare’, or ‘two minutes in the closet’ during that edgy middle school party may actually be committing a serious sex crime punishable by imprisonment and/or a fine, not to mention the high school sweethearts of American lore who grope each other for two hours in the backseat of the borrowed family car at the drive-in movie theater.

Penal Code section 288.2 makes it illegal to communicate any sexual content to a minor, even if the perpetrator is himself or herself a minor. This may make phone-sex or sexual photos or messages that are texted, emailed, written, or spoken between high school lovers a sex crime. One may wonder whether our jails are big enough to handle the kind of traffic that this statute, if regularly enforced, would create.

Penal Code section 288.5 makes it a felony to engage in three or more acts of “substantial sexual conduct” or “lewd and lascivious conduct” with a child under 14 years old when the conduct occurs over a period of time of at least three months in duration and the perpetrator “resides in the same home with the minor child or has recurring access to the child”, even if the perpetrator is under the age of 18 too. Therefore, if your 13 year-old son and your 12 year-old stepdaughter, or your son’s 13 year-old girlfriend who regularly visits your home, are often engaging in sexual conduct with each other in your home over a period of three months or more, they may be committing a crime under this statute, and so may you by contributing to the delinquency of a minor under Penal Code section 272.

Penal Code section 288a makes it illegal for any person to have oral sex with a minor, even if the perpetrator is under the age of 18 too. As many professionals such as teachers and therapists who regularly work with middle-schoolers and high-schoolers in California already know, oral sex is quite common among these teenagers, and yet it is a serious sex crime.

Then of course there are the dramatic statutory rape cases that you hear about from time to time on the local news or at the gym: an 18 year-old college freshman is imprisoned for having sex at a college fraternity party with a very willing 17 year-old co-ed and is convicted for statutory rape when the 17 year-old’s parents report the incident to the police; the famous 22 year-old rapper who has sex backstage with the 16 year-old groupie who threw herself at him after the sell-out 18+ show at the club; or the 21 year-old college kid who has sex with an eager 17 year-old local high-schooler who used a fake ID to get into the 21+ bar downtown for the sole purpose of finding a college kid to have sex with.

Reasonable Mistake about Age of Sex Partner in California Statutory Rape and Juvenile Sex Offense Law

This raises the question: What if you actually and reasonably believe that the person with whom you engaged in sexual activity is 18 years-old, but you’re wrong because they are in fact a minor? In the landmark California case of People v. Hernandez 393 P.2d 673 (Cal. 1964), the California Supreme Court held that an honest and reasonable mistake as to the age of the minor in certain cases is a recognized defense to the crime of sex with a minor over 13 years old, especially in cases where the minor is nearly 18 years old. But proving that your mistake was both honest and reasonable can be a horrifying ordeal particularly when your liberty is at stake in a life-shattering statutory rape case where you’re the defendant. Who’s to say how old that 16 year-old really looked at that party, or whether you knew or should have known that the bar or frat house sometimes looks the other way when 17 year-olds try to enter, or whether you should have known that the 15 year-old’s foreign driver’s license or passport was fake especially when your judgment may be clouded by his or her aggressive sexual advances and sincerity?

Consequences of Committing a Sex Crime in California

The consequences of being convicted of a sex crime are extremely graven and include imprisonment and/or a hefty fine, as well as a criminal record which may forever devastate your academic and professional career, immigration application, family and child custody rights, and your social life. Megan’s Law in California makes many of these sex crimes publicly registrable sex offenses, as you can see here.

There once was a shameful time in California history when homosexual sex and interracial sex were illegal and publicly scorned, and this state is still embroiled in the same-sex marriage debate. Perhaps the next horizon in California’s public law-private lives dilemma is the redefining of sex crime laws. In the meantime, I’ve heard concerned parents advising their teenage and adult children to abstain from sex rather than to take the risk in casual sex encounters, to choose mates extremely cautiously, and even to sign consensual sex agreements before having sex with anyone or to consensually videotape all sex acts to try to document the fact that no crime was committed in the process! Indeed as such worried advice may likely fall on deaf ears in our highly sexualized society, it’s probably more useful to write your congressperson, and well … to be safe out there!