In Re TAJ

Penal Code section 261.5, subdivision (b), makes it a misdemeanor for "any person" to have sexual intercourse with a minor who is no more than three years older or younger than the perpetrator. Does this statute infringe a constitutional privacy right of minors to engage in consensual sexual intercourse? Is the statute unconstitutional as applied to appellant who was a minor himself at the time of the alleged offense, and therefore, an individual within the class of persons protected by the statute? In affirming the finding of the trial court determining appellant to be a ward of the court, we answer both questions in the negative.

A juvenile petition pursuant to Welfare and Institutions Code section 602 was filed on April 22, 1996, charging appellant T.A.J. with misdemeanor statutory rape in violation of Penal Code section 261.5, subdivision (b). [1] The petition alleged that 16-year-old T.A.J. engaged in an act of unlawful sexual intercourse with another minor no more than 3 years older or younger than himself on February 9, 1996. On July 5, 1996, the petition was amended by adding one count of forcible rape under section 261, subdivision (a)(2). A…