In the context of Romeo and Juliet laws, California law has recently changed in two significant respects. First, with the passage of California law SB-30, a minor under certain circumstances may enter into a domestic relationship with a person over the age of 18 and be afforded the same rights afforded to marital partners. Second, with the passage of California law SB-145, although sexual misconduct with a minor is still punishable under various statutory provisions, certain sex offenses no longer require lifetime registration when committed by a person no more than 10 years older than the minor.
SB30 is a new law allowing for domestic partners to enjoy all the rights, protections and benefits of marriage. Domestic partnership has been defined as two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring. The law expands domestic partnership to include persons under the age of 18 years capable of providing consent.
Under the new law, a person under the age of 18 who otherwise meets the requirements of a domestic partnership may establish a domestic partnership with another person under 18 years. A minor may establish a domestic partnership with another person over 18 years, under certain circumstances.
Persons including minors that wish to establish domestic partnership must go to court for permission. If the court is satisfied that the minor has parental consent, the court is required to have the minor and partner engage in Family Court Services (FCS) to be separately interviewed. FCS will submit a report to the court. The written report must contain any assessment of potential force, threat, persuasion, fraud, coercion, or duress by either of the parties or their family members related to the intended partnership.
If abuse is suspected, FCS is required to make a mandatory report to the Child Protective Services agency. This information is cross-reported to law enforcement. Be aware, even if the Child Abuse Neglect Reporting Act (Penal Code sections 11154-11174.3) does not require all crimes against minors to be reported, the behavior may still be prosecuted, as noted below.
After receiving the assessment report, the court must consider evidence of coercion or undue influence on the minor. The court may order prospective domestic partners to engage in counseling concerning social, economic, and personal responsibilities attendant to the domestic partnership. The court may not require religious counseling in determining whether to issue a court order granting permission to establish a domestic partnership.
Sex with a minor is still illegal. Note that SB30’s domestic partnership provisions do not provide a “get out of jail free card” for adults who have engaged in sexual relations with a minor before entering into a domestic partnership with the minor. In fact, SB30 provides a Catch-22 situation – while an adult might gain protections under the Act if sexual relations are not determined to be abusive, the sexual acts committed prior to the partnership still constitute crimes and may be reported to law enforcement.
Crimes against minors that do not involve force or coercion, and which remain illegal, include: Penal Code section 261.5(b) (intercourse, age difference less than 3 years); Penal Code section 261.5(c) (intercourse, age difference more than 3 years); Penal Code section 261.5(d) (intercourse, minor under the age of 16, partner 21 or older); Penal Code section 288(c) (lewd act, one partner under 14 or 15 and the other is 10 years older); Penal Code section 288(a) (lewd act, one partner under 14 the other is 14 or older); Penal Code section 286 (sodomy, adult and minor); Penal Code section 287(b) (oral copulation with minor); Penal Code section 289 (h)/(i) (sexual penetration of minor).
Marriage remains a defense to acts involving statutory rape under Penal Code section 261.5, but there is no express provision for that defense in the other laws. An equal protection challenge against prosecution for similar crimes without force may provide some protection, but this is untested in courts that have proven to be hostile to equal protection challenges in the context of crimes against minors. For example, see Johnson v. Department of Justice (2015) 60 Cal. 4th 871.
SB145 makes sex offender registration no longer required for certain offenders. The Sex Offender Registration Act was recently modified to delete registration requirements for persons who at the time of certain specified offenses were not more than 10 years older than the minor, as measured from the minor’s date of birth to the person’s date of birth, and the conviction is the only one requiring the person to register.