The Difference Between Statutory Rape and Rape in California

Free & Confidential Consultations

Many people are unsure of the meaning of statutory rape versus rape. Both involve sexual intercourse.

However, rape involves actual lack of consent, while statutory rape involves technical lack of consent because the victim is a minor. 

If you have been charged with rape or statutory rape, contact The Law Offices of Kerry L. Armstrong, APLC, today.

Our award-winning San Diego sex crimes attorneys are dedicated to fighting for your best outcome after a criminal charge.

What Is “Rape”?

In California, rape is sexual intercourse accomplished:

  • When one person cannot consent due to a mental disorder or disability;
  • By force or fear of injury to the person or someone else;
  • When the victim is intoxicated;
  • When the victim is unaware of the act;
  • By a person pretending to be someone else;
  • By threatening to harm the person or someone else; or
  • By threatening to use the authority of public office.

The second category is sometimes called “forcible rape,” but no actual force is necessarily required.

Penalties for Rape

The typical rape sentence is three, six, or eight years in prison. However, if the other person was under 14, the prison sentence is nine, eleven, or thirteen years.

If the victim was between 14 and 18, the sentence is seven, nine, or eleven years.

The law requires someone convicted of rape to register as a sex offender for life.  Most types of rape are also considered violent felonies for purposes of California’s three-strikes law.

What Is “Statutory Rape”?

Statutory rape, known as “unlawful sexual intercourse,” is defined by the ages of the people involved rather than the means used to overcome one person’s lack of consent.

Statutory rape is sexual intercourse with a minor, considered a crime because minors cannot legally consent to have sex in California.

There are different levels of statutory rape:

  • Having sex with a minor who is no more than three years older or younger than you is a misdemeanor;
  • Having sex with a minor who is more than three years younger than you is either a felony or a misdemeanor, punishable by up to three years in prison; and
  • Someone who is 21 or older having sex with a minor younger than 16 is a felony or a misdemeanor, punishable by up to four years in prison.

Although rarely charged, two minors who engage in consensual sexual intercourse have committed statutory rape in California.

Additionally, sexual conduct with a person younger than 14 is usually a felony and a separate crime.

Civil penalties for statutory rape range from $2,000 to $25,000. Unlike some states, California does not automatically require people convicted of statutory rape to register as sex offenders; however, the sentencing judge has discretion to impose sex registration if he or she feels that it is warranted.  

Statutory Rape versus Rape

There are several differences between statutory rape and rape:

  • Consent—rape involves actual lack of consent, while statutory rape involves a minor’s technical lack of consent due to their minority;
  • Severity—rape is always a felony, while statutory rape can be a misdemeanor;
  • Prison time—rape involves longer prison sentences;
  • Sex offender registry—rape requires registration; and
  • Three-strikes law—rape is usually a violent crime.

The distinction between forcible rape vs. statutory rape acknowledges the actual consent of the minors, despite their technical inability to consent.

Get in Contact with a San Diego County Sex Crimes Lawyer Today

If you have been charged with rape or statutory rape, contact The Law Offices of Kerry L. Armstrong, APLC, today.

Our experienced sex crimes lawyers are committed to ensuring everyone charged with a crime can vigorously defend their name.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

Rate this Post

1 Star2 Stars3 Stars4 Stars5 Stars