Statutory Rape Resulting in a Child

[cdwjava]

But this case is not about that ... this is about a 17-year-old male who had relations with a 19-year-old female immigrant and has been paying for support. It seems that the male is trying to get the female in trouble either to avoid paying support (won't work) or get her deported (likely as "revenge").

In any event, I would be astonished if a DA would try to create a 288a or other offense out of an otherwise consensual act that is 6 years past and was between two teenagers.

- Carl

[Swanson]

All I have to add is that most DAs I know are NOT going to take this consensual act between a 17 and a 19 year old and try to create a serious felony out of it absent some other reason to go after the girl.
- Carl

It's not "consensual sex" if the person is under the age of consent and a minor, which is 18 in California: 289. (h) Any person who participates in an act of sexual penetration with another person who is under 18 years of age. §803(f) (1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5 as to relating to penetration by an unknown object, "including a penis" defined in section (k)(3) .
California also prosecutes for oral sex with anybody under 18: 288a.(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. (b) (1) Any person who participates in an act of oral copulation with another person who is under 18 years of age.
Maybe you think they wont go after an older woman because your experience with cases was pre-1993 when the law was gender biased in California, but now women are prosecuted also.

[cdwjava]

It's not "consensual sex" if the person is under the age of consent and a minor, which is 18 in California: 289.

By "consent" I mean that it was not forced.

Read PC 261.5.

And section 289 does NOT include the penis. It includes a digit or other items, but not a penis. And a conviction would require more than the simple say-so of the person DOING the penetration (in this case the 17-year-old boy). Unless the 19-year-old girl somehow stuck a foreign object up the boy's rectum she could not commit this offense. She could, however, commit oral sex upon him per 288a ... but even THAT is a misdemanor.

As for the other offenses, they would still have to be proven. if the woman admits only to standard, missionary position, sexual intercourse no case, no evidence, no crime ... the SOL will have passed.

Maybe you think they wont go after an older woman because your experience with cases was pre-1993 when the law was gender biased in California, but now women are prosecuted also.

No, I think it won't be prosecuted because I have 15 years as a cop and 7 years of experience bringing these types of cases to court and working with prosecutors to GAIN convictions! It is what I do for a living.

Unless there are some details missing, NO PROSECUTOR will file against this woman! They will see it for what it is - a blatant attempt to circumvent financial responsibility or vengance.

Also, you might want to read ALL the factors that must exist before 803(f)(1) is applicable. The crime must have involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and, that there is independent evidence that corroborates the victim's allegation. The child proves only that the 17-year-old had intercourse with the 19-year-old (i.e. that HE penetrated her with his penis ... a misdemeanor against her per PC 261.5) - it does NOT prove that any other sex act occurred (i.e. it does not prove "sexual pentration" OR "oral copulation"). So where is the independent evidence as required by law to allow for the 803 exception?

I am not saying that a DA could not make a case that he could try to prosecute, I am saying that he will not choose to do so. If one really wanted to stretch things, a DA could probably make a minimal case ... but why?

As I said, Swanson, if you are a party to this affair then take it to the police and see what they have to say. IF they take a report, let us know if the DA actually takes the case to court. I would be fascinated to see how such a case would play out.


- Carl