Sex Between Minors
In the State of California it is illegal for any minor to have sexual intercourse with another minor even when agreed to by both minors. It is illegal for boy minors and girl minors to engage in this conduct while either one of them is under the age of 18. It can be charged as either a misdemeanor or a felony. It is a misdemeanor offense for two minors to engage in sexual intercourse if they are within three years of age of each other. It is a felony offense if they are not within three years of age of each other. If one of the minors is under the age of 14, normally the female, despite being within three years of age of each other, the prosecutor can charge a felony offense of lewd and lascivious conduct. Lewd and lascivious conduct is a felony offense that cannot be reduced later to a misdemeanor. The minor boy is subject to juvenile and possibly adult court prosecution. Depending on the background of the boy and the circumstances, a jail sentence, probation, and registration as a sex offender for life are all potential possibilities. Suppose a boy is 17 and dates a 13-year-old girl. They engage in consensual sexual intercourse while she is 13. He has committed a felony violation of lewd and lascivious conduct. In this example, the girl is not going to be prosecuted.
Let’s suppose the 17 year old boy waits to engage in sexual intercourse with his girlfriend until she is 14, 15, 16 or 17. He instead engages in consensual oral copulation. He is guilty of oral copulation and could be prosecuted for either a felony or a misdemeanor. Suppose he engages in consensual digital penetration with his finger when the girl was 14, 15, 16 or 17. He has committed digital penetration, a felony offense just like oral copulation. This charge can be prosecuted as a felony or a misdemeanor even if the minors are within three years of age of each other. The range of charges and penalties dramatically escalates if the girl was intoxicated, found to be mentally deficient or had been given a date rape drug. The minor boy is likely to be charged with rape. We are then talking about felony charges that cannot be reduced to misdemeanors, carry more severe penalties and could potentially result in adult prosecution, registration as a sex offender for life, and not being able to get their record sealed if prosecuted as a juvenile. The charges and penalties can also dramatically escalate if more than one person engages in sexual conduct at the same occasion with the girl.
What is most concerning is that oral copulation between 7th and 8th grade students is the practice of choice in most public middle schools. The girls are equally aggressive as the boys to engage in this behavior. If the girl is under 14, it is felony lewd and lascivious conduct in addition to being a violation of the oral copulation laws as explained above. Generally the girls are not prosecuted, but the boys can be. They will face suspension and expulsion hearings at their schools. They will be prosecuted in the Juvenile Court. Once again, oral copulation and digital penetration are felony offenses even if the minors are the same age or within three years of age of each other. If the girl is under the age of 14, or the boy depending on the age of the girl, the prosecutor can also charge the more serious offense of lewd and lascivious conduct.
What can parents do when they know their underage minors are engaging in sexual conduct with other underage minors? Let’s take the example of the parents of the 17-year-old boy above. They need to explain to their son that any sexual conduct as described above with his minor girlfriend is a felony that can have serious legal and life-long consequences. They need to inform the parents of the 13-year-old girl they do not approve of the relationship.
Suppose the parents of the 13-year-old girl approve of the relationship and say they will keep an eye on the minors’ behavior. They potentially could be charged with the felony offense of contributing to the delinquency of a minor. Certainly the parents of the either the 17- or 13-year-old could request a restraining order in court to keep the minors away from each other.
Let’s suppose a girl is 16 and is engaging in illegal sexual conduct. She will not listen to her parents and refuses to stop her illegal behavior. Her parents kick her out of the house. She goes and lives with friends. She later moves in with her sexual partner boyfriend and his family. Child Protective Services or the police are called. By law, parents have a duty and are responsible to support and to provide for their kids; but they also have a duty to protect their kids. Should the parents of the girl take a hard line and say you cannot return home unless you agree to reform your behavior? Child Protective Services is going to want to see that the 16-year-old girl is being properly cared for, but will turn a blind eye to the illegal sexual conduct between minors. The police could potentially threaten misdemeanor prosecution against the parents if the minor girl ends up in a shelter and the parents refuse to pick her up and take her home. Professional counseling is recommended. A consultation with a knowledgeable attorney is advisable.
The laws mentioned above are in the California Penal Code they include P.C. 261.5, P.C. 288(a), P.C. 288a, P.C. 289 (h), P.C. 272 and P.C. 261.