Consensual sexual activities with minors are not always crimes

Under California Penal Code 261, nonconsensual intercourse is rape. The code does not refer to the accuser's age. Penal code 261.5, known as statutory rape, makes it a crime to have sexual intercourse with minors under 18.

261.5. Unlawful sexual intercourse with person under 18:

(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.

(b) Any 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) Any 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 Section 1170(h).

This code does not refer to "consent". On the other hand, case law and California Jury Instructions Criminal (caljic) are in conflict with the law of statutory rape. Caljic 10.65 Belief as to consent provides in part:

There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in sexual intercourse, oral copulation ...

Caljic 10.65 Comment states:

This instruction may be given if victim is under 18. Actual consent and good faith belief of consent are two separate defenses and when justified both instructions must be given. People v. Anderson (1983) 144 Cal.App. 3rd 55, 60-62.

Obviously, caljic 10.65 has invalidated statutory rape; and Penal Code 20 requiring a union or joint operation of act and intent in every crime reinforced caljic 10.65 - no intent, no crime.

In 1975 in People v. Mayberry 15 Cal 3d 143, 155, the Supreme Court held that a defendant's good faith, reasonable belief that a victim was 18 years or more of age and voluntarily consented to engage in sexual intercourse is a defense to a charge of forcible rape.

In 1983, People v. Anderson (1983) 144 Cal.App. 3rd 55 extended the holding of Mayberry to 14-year-old accusers. In Anderson, two girls, C and K, 14 and 15-year-old left a shopping center and hitchhiked to get home. Anderson drove up and offered them a ride. C got in the back seat and K took the front seat. Anderson's 4-year-old son Joshua was in the back seat.

Soon after, Anderson started his sexual advances with K, rubbed her legs, touched her breasts and ordered her to orally copulate him, pushing her head onto his lap. K complied. Later, after threatening the girls with a gun, Anderson pulled over and ordered them to disrobe and to orally copulate him. He could not penetrate them.

The girls reported the incident. Anderson was convicted of several sex crimes and false imprisonment. Anderson's four-year-old son Joshua was his only witness in trial court. The trial court ruled that the testimony of Joshua was sufficient to raise an issue as to actual consent, and the jury was properly instructed on that defense. But the jury ruled against Anderson on the issue of actual consent.

On appeal Anderson raised several issues including the Mayberry defense, the girls' consent to sex and his good faith belief that they consented. The court of appeal reversed his forceable rape and oral copulation since the trial court had failed to instruct defendant's good faith belief of consent:

While the jury decided the issue of actual consent adversely to appellant, that determination does not necessarily decide the issue of whether appellant reasonably believed the victims consented. The two defenses are separate. People v. Mayberry, supra, 15 Cal.3d 143, is on point. There the trial court failed to instruct on the defense of reasonable belief as to consent. Despite the fact that the jury rejected the defendant's consent defense, the Mayberry court held that there was reversible error. (Id., at pp. 157-158.) The basis of the Mayberry holding was that the reasonable belief defense could not have been "necessarily" rejected since the jury was never instructed that such a separate defense was at issue. As appellant notes, the jury could not have implicitly rejected the reasonable belief defense when they were never asked to consider it. Anderson p. 63.

There was no dispute that the girls were 14 and 15 years old. Yet the court of appeal agreed that the defendant's good faith belief that they had consented to oral copulation and intercourse was a defense. The court of appeal reversed these convictions without directing the prosecution to retry on statutory rape.

It is noted that Penal Code 261.5 applies only to intercourse with minors. Anderson extended the defense of consent of 14-year-olds to other sexual conducts.

California Courts state that 14-year-olds have capacity to consent to sexual activities

There is a presumption that children under age 14 cannot give legal consent to sexual activity." (People v. Soto (2011) 51 Cal.4th 229, 245, 248, fn. 11. Soto involved lewd acts (Penal code 288(a) on two girls ages 11 and 12. Soto held the victim's consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances. Soto 233.

With respect to minors ages fourteen to seventeen, no such presumption of incapacity to consent to sexual activity appears currently operative in this state. (In re M.V. (2014) 225 Cal.App.4th 1495, 1524.). M.V. was a minor charged with loitering to commit prostitution and prostitution. She was also a juvenile court dependent due to abuse and neglect. She appealed dismissal of her dependency case and the loitering conviction, claiming that as a minor - she was legally incapable of forming the requisite intent to commit prostitution.

In People v. Toliver (2004) 270 Cal. app. 2d 492, 496 the court of appeal noted that "[u]nder the Roman and common laws, childhood was considered to exist until puberty, which was determined to be at age 14.... While recognizing that some females reach puberty below the age of 14, no reason why the distinction between a child and a more mature person should not continue to be held at that age."

Manifestly, the above authorities disagree with the crime of statutory rape and other consensual sexual activities with those 14 years old and older - an approach that has resulted in millions of convictions and sex registrations that have destroyed many families and individual lives and livelihoods.

We invite the California Legislature to revisit Penal Code 261.5 in compliance with caljic 10.65 and Anderson and to make the amendment fully retroactive for pending and final cases to rectify these wrongs.