(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 18 years of age and an “adult” is a person who is 18 years of age or older.
(b)A 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)A 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)A 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.
(e)(1)Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A)An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars
($2,000).
(B)An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C)An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D)An adult over 21 years of age who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2)The district attorney may
bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3)In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against a person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s
ability to pay, and a defendant shall not be denied probation because of their inability to pay the fine permitted under this subdivision.
(f)A person convicted of violating subdivision (d) who is granted probation shall not complete their community service at a school or location where children congregate.
Notes of Decisions
United States v. Alejandro Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007).
· cites it 17× “Although Cal.Penal Code § 261.5 is titled "Unlawful Sexual Intercourse,” "[w]e look solely to the statutory definition of the crime, not to any name given to the offense.”
Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007).
· cites it 17× “See Cal.Penal Code § 261.5(a) (defining "unlawful sexual intercourse" for purposes of 261.”
United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011).
· cites it 10× “5(c), which criminalizes "an act of unlawful sexual intercourse with a minor," with "minor" defined as "a person under the age of 18 years," CAL. PENAL CODE § 261.5(a), does not qualify categorically as "statutory rape" because it establishes eighteen rather than sixteen as the…”
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).
· cites it 8× “As a result, because “California sets the age of majority at eighteen, CaLPenal Code § 261.5(a), this case requires us to break new ground.”
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017).
· cites it 3× “In its view, the 3-year age difference required by Cal. Penal Code § 261.5 (c) was meaningful.”
United States v. Chad Jaycox, 962 F.3d 1066 (9th Cir. 2020).
· cites it 17× “See Cal. Penal Code § 261.5 (c) (2000). The changes concerned imprisonment details for those convicted of the crime and did not alter the conduct criminalized, and so are not material to our analysis.”
Juan Esquivel-Quintana v. Loretta E. Lynch, 810 F.3d 1019 (6th Cir. 2016).
· cites it 6× “” Cal. Penal Code § 261.5 (c). Unlawful sexual intercourse is defined as “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor,” and a minor is “a person under the age of 18.”
United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
· cites it 4× “05 (3) (2007), but not under California law, see Cal. Penal Code § 261.5 . More to the point for purposes of the counts of conviction, even at 17, A.”
Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464 (1981).
· cites it 6× “I It is disturbing to find the Court so splintered on a case that presents such a straightforward issue: Whether the admittedly gender-based classification in Cal. Penal Code Ann. § 261.5 (West Supp. 1981) bears a sufficient relationship to the State's asserted goal of…”
United States v. Faustino Gomez, 757 F.3d 885 (9th Cir. 2014).
· cites it 7× “§§ 5-14-103 (a)(3), 5-14-126(a)(2)(A); Cal.Penal Code § 261.5(b); Del. Code Ann.”
Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007).
· cites it 12× “As a result, because "California sets the age of majority at eighteen, Cal.Penal Code § 261.5(a), this case requires us to break new ground.”
— Cal. Penal Code § 261.5(a) — 14 cases
United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011).
“5(c), which criminalizes "an act of unlawful sexual intercourse with a minor," with "minor" defined as "a person under the age of 18 years," CAL. PENAL CODE § 261.5(a), does not qualify categorically as "statutory rape" because it establishes eighteen rather than sixteen as the…”
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).
“As a result, because “California sets the age of majority at eighteen, CaLPenal Code § 261.5(a), this case requires us to break new ground.”
United States v. Alejandro Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007).
“Although Cal.Penal Code § 261.5 is titled "Unlawful Sexual Intercourse,” "[w]e look solely to the statutory definition of the crime, not to any name given to the offense.”
— Cal. Penal Code § 261.5(b) — 5 cases
United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011).
“5(c), which criminalizes "an act of unlawful sexual intercourse with a minor," with "minor" defined as "a person under the age of 18 years," CAL. PENAL CODE § 261.5(a), does not qualify categorically as "statutory rape" because it establishes eighteen rather than sixteen as the…”
— Cal. Penal Code § 261.5(c) — 50 cases
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).
“As a result, because “California sets the age of majority at eighteen, CaLPenal Code § 261.5(a), this case requires us to break new ground.”
United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011).
“5(c), which criminalizes "an act of unlawful sexual intercourse with a minor," with "minor" defined as "a person under the age of 18 years," CAL. PENAL CODE § 261.5(a), does not qualify categorically as "statutory rape" because it establishes eighteen rather than sixteen as the…”
Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007).
“As a result, because "California sets the age of majority at eighteen, Cal.Penal Code § 261.5(a), this case requires us to break new ground.”
Juan Esquivel-Quintana v. Loretta E. Lynch, 810 F.3d 1019 (6th Cir. 2016).
“” Cal. Penal Code § 261.5 (c). Unlawful sexual intercourse is defined as “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor,” and a minor is “a person under the age of 18.”
— Cal. Penal Code § 261.5(d) — 25 cases
United States v. Alejandro Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007).
“Although Cal.Penal Code § 261.5 is titled "Unlawful Sexual Intercourse,” "[w]e look solely to the statutory definition of the crime, not to any name given to the offense.”
Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007).
“See Cal.Penal Code § 261.5(a) (defining "unlawful sexual intercourse" for purposes of 261.”
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