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Why having sex with a minor is called rape in California?

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Latest post Wed, Jan 25 2017 3:49 PM by ca19lawyer2. 5 replies.
  • Wed, Jan 25 2017 5:58 AM

    • Ignas1234
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    Why having sex with a minor is called rape in California?

    while there is no word "rape" in California penal code section 261.5?

    or having sex with a minor is not rape or statutory rape in California? this is how 261.5 defines it: (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.

    http://codes.findlaw.com/ca/penal-code/pen-sect-261-5.html so there is no word rape only unlawful sexual intercourse with a minor, unlike 261 that does have a word rape in it. Why is that? Whats the difference between these two statutes? also can a person be charged with 261 as well as 261.5.?

     

  • Wed, Jan 25 2017 6:15 AM In reply to

    Re: Why having sex with a minor is called rape in California?

    261.5 is considered statutory rape.  It addresses a consensual act of intercourse that is unlawful because a minor cannot legally consent to sex.  261 is rape which is non-consensual sex.  Yes, a person could be charged with both but obviously the punishment for 261.5 is much lower. 

  • Wed, Jan 25 2017 9:51 AM In reply to

    Re: Why having sex with a minor is called rape in California?

    Ignas1234:

    Why having sex with a minor is called rape in California?

    while there is no word "rape" in California penal code section 261.5?

    Well...for starters, section 261.5 appears in Chapter 1 of Title 9 of Part 1 of the Penal Code.  Chapter 1 is titled "RAPE, abduction, Carnal Abuse of Children, and Seduction."  Unlawful sexual intercourse in violation of section 261.5 is typically referred to as STATUTORY rape.  If someone refers to such a violation as "rape," you are certainly free, if you like, to respond by saying, "It's not 'rape,' it's unlawful sexual intercourse."  I suspect the most common response you will receive will be something along the lines of "whatever" or "same difference" or "is THAT really what you want to focus on here"?

     

    Ignas1234:
    or having sex with a minor is not rape or statutory rape in California?

    Huh?

     

    Ignas1234:
    so there is no word rape only unlawful sexual intercourse with a minor, unlike 261 that does have a word rape in it. Why is that?

    Feel free to contact every member of the California Legislature and ask.  Is there some particular reason you seem hung up on the absence of the word "rape" from PC 261.5?

     

    Ignas1234:
    Whats the difference between these two statutes?

    Both PC 261 and PC 261.5 are lengthy laws.  You can read them yourself and identify the differences.  Without going into detail, PC 261 describes "traditional" rape (i.e., forcible intercourse), while PC 261 describes "statutory rape" (i.e., sexual intercourse that is only rape because the statute says so and not because it constitutes "traditional" rape).

     

    Ignas1234:
    can a person be charged with 261 as well as 261.5.?

    If the elements of both statutes are met, yes.

  • Wed, Jan 25 2017 2:41 PM In reply to

    • Ignas1234
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    Re: Why having sex with a minor is called rape in California?

    Ignas1234:
    so there is no word rape only unlawful sexual intercourse with a minor, unlike 261 that does have a word rape in it. Why is that?

    "Feel free to contact every member of the California Legislature and ask.  Is there some particular reason you seem hung up on the absence of the word "rape" from PC 261.5?"

    well I had an argument with someone who said that unlawful sexual intercourse with a minor is not statutory rape because there is no word rape in 261.5

    yeah I also tried explaining that section 261.5 appears in Chapter 1 of Title 9 of Part 1 of the Penal Code.  Chapter 1 is titled "RAPE, abduction, Carnal Abuse of Children, and Seduction and that a minor cant legally consent to sex 

    I don't know much about the law, but I also used 261.6 which says:" In prosecutions under Section 261, 262,286, 288a, or 289, in which consent is at issue, “consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will."

    Because there is no mention of 261.5 in it so I thought it basically means that a minor cant consent to sex and if someone cant consent to sex that means its rape. There must be some logical way of explaing that calling unlawful sexual intercourse with a minor a statutory rape is not wrong...

    well either way according to him none of these points matters simply because there is no exact word rape in 261.5 And it was impossible to change his mind. According to him you can only say it was statutory rape if person was charged with both 261 and 261.5 because there is such word "rape" in 261. Also he said that some minors are more advanced than others and that it means something... and that a minor can consent to sex in a form that punishment is not as severe.

  • Wed, Jan 25 2017 2:52 PM In reply to

    • Ford
      Lawyer
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    • Joined on Thu, Mar 16 2000
    • Posts 12,824

    Re: Why having sex with a minor is called rape in California?

    Ignas1234:
    There must be some logical way of explaing that calling unlawful sexual intercourse with a minor a statutory rape is not wrong...

    No, there "must" not be.  You can't argue with a pinhead who thinks screwing a juvenile isn't rape.

    Classic "rape" involves acts that overcome the will of the target.  Using physical force, using alcohol, using threats, etc.  Those are not present in statutory rape - the sex is "defective" in that one party cannot give consent as a matter of law.

    Ignas1234:
    Also he said that some minors are more advanced than others and that it means something... and that a minor can consent to sex in a form that punishment is not as severe.

    No state has law that sets an age of consent at some unmeasurable level of maturity.  That would jeopardize the safety of children.  This person you've encountered is a dangerous know-it-all and you should just avoid him.

  • Wed, Jan 25 2017 3:49 PM In reply to

    Re: Why having sex with a minor is called rape in California?

    Ignas1234:
    I had an argument with someone who said that unlawful sexual intercourse with a minor is not statutory rape because there is no word rape in 261.5

    If that person wants to take that position, he/she is free to do so.  Anyone who knows anything about this area of the law, however, will tell you that PC 261.5 is California's statutory rape law.

     

    Ignas1234:
    Because there is no mention of 261.5 in it so I thought it basically means that a minor cant consent to sex and if someone cant consent to sex that means its rape.

    That's about the long and the short of it.  The premise of statutory rape laws is the LEGAL FICTION that minors are incapable of consenting to sex.  I say it's a legal fiction because it is nothing more than a creation of the law.  For what it's worth, every state has different laws on this issue.  California is one of the strictest states in that any sex with a person under 18 is statutory rape.  Doesn't matter if the other person is also under 18.  In fact, it doesn't even matter if the alleged "rapist" is younger than the alleged "victim."  In theory, a 16yo boy could be prosecuted under 261.5 for "raping" a 17 1/2yo girl.  Nor does it matter -- as it does in most other states -- how close in age the two persons are.  For example, in many states, sexual intercourse that might otherwise constitute statutory rape is not considered to be a crime if the older person is less than X years older than the younger person (google "romeo and juliet law" for more info about that).

     

    Ignas1234:
    There must be some logical way of explaing that calling unlawful sexual intercourse with a minor a statutory rape is not wrong.

    I'm not sure why you care whether this other person believes PC 261.5 is a statutory rape law.  Maybe google "California statutory rape law," which I assume will produce tons of articles that discuss PC 261.5.  Ultimately, though, if I want to call my car a horse, you can tell me until you're blue in the face that my car is not, in fact, a horse, and it won't matter to me.  More to the point, regardless of what this other person believes, the reality is that PC 261.5 is commonly referred to as California's statutory rape law.

     

    Ignas1234:
    According to him you can only say it was statutory rape if person was charged with both 261 and 261.5 because there is such word "rape" in 261.

    Wrong.  I CAN SAY anything I damn well please.  I CAN SAY, if I want, that it's a banana, even though the word "banana" doesn't appear in the statute.  It's called slang or shorthand.

     

    Ignas1234:
    Also he said that some minors are more advanced than others and that it means something... and that a minor can consent to sex in a form that punishment is not as severe.

    I have no idea what the last part of this sentence means, but it's obviously true "that some minors are more advanced than others."  Some persons who are 17 are FAR more mature and emotionally capable of cosenting to sex than some 20 year olds.  However, a courtroom is no place to conduct an inquiry into the emotional maturity of a minor, so the California Legislature has chosen to draw a clear line:  under 18 = no LEGAL ability to consent to sex; over 18 = have all the consensual sex you want.

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