Statutory rape, known in Pennsylvania as statutory sexual assault, is a common offense to be charged with. Many defendants ask the same question of their criminal attorneys: is it a defense to say that you didn’t know the other person’s real age? As with many legal questions, the answer depends on the details of the situation.

Before we can discuss the nuances of Pennsylvania’s statutory rape laws, we need to cover the distinction Pennsylvania’s legislation makes between rape and sexual assault. In some states, these offenses are considered one in the same – but in Pennsylvania, they carry distinct definitions.

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As of 2015, Pennsylvania actually doesn’t have a statutory rape law. The pertinent statute, formerly located at 18 Pa. Cons. Stat. § 3122, was repealed in March of 1995. However, that doesn’t mean Pennsylvania made statutory rape legal – it simply means that the offense’s original definition shifted.

After the statute was repealed, it was quickly replaced with 18 Pa. Cons. Stat. § 3122.1, which renamed the offense to statutory sexual assault. The difference is that rape – under Pennsylvania’s legal definition – inherently involves nonconsensual penetration plus some element of violence, force, or threat-making, including impairing the victim with drugs or alcohol.

By comparison, sexual assault is defined strictly as “sexual intercourse… without the complainant’s consent,” thus excluding the violence component which must be present in rape charges (with the exception of rape being charged when the victim suffers from a mental disability). Therefore, a defendant need not use violence or coercion to be charged with statutory sexual assault: nonconsensual penetration alone is sufficient to result in criminal charges.

“But what if the person wanted to, and it wasn’t nonconsensual?” many defendants then ask. The underlying concept behind the statutory rape charge is that victims are inherently unable to consent, because they are below the age of consent – even if they willingly participate. No amount of willingness or emotional devotion on the part of the victim is a defense to statutory rape charges, because the charge arises from the victim’s age – not from their attitude toward the sexual activity. The age of consent is 16 in Pennsylvania, but varies across the U.S. In some states, such as California and Florida, the age of consent is 18 years. Even within the boundaries of Pennsylvania, the age of consent can fluctuate depending on the age of the other party, as explained below.

18 Pa. Cons. Stat. § 3122.1 makes statutory sexual assault a second or first degree felony, depending on the nature of the alleged offense. This offense is graded as a second degree felony when the defendant “engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years,” (i.e. a non-spouse who is 15 years old or younger), provided one of the following statements are also true:

In Pennsylvania, potential penalties for a second degree felony include a fine of $25,000 and a sentence of up to 10 years in prison. The maximum fine for a first degree felony is the same, but the maximum sentence doubles to 20 years.
These penalties are incredibly severe. Unfortunately for defendants, 18 Pa. Cons. Stat. § 3102 explicitly provides that ignorance of the victim’s age is not a defense – at least, not under certain circumstances.


The statute states that if the victim is less than 14 years old, “it is no defense that the defendant did not know the age of the child or reasonably believed the child to be the age of 14 years or older.”

However, the same statute also provides that, “when criminality depends on the child’s being below a critical age older than 14 years, it is a defense for the defendant to prove by a preponderance of the evidence that he or she reasonably believed the child to be above the critical age.” In other words, the burden of proof falls on the defendant to show that he or she had good reason to believe the child was of age. A skilled criminal defense lawyer will analyze all angles of the situation to present the most compelling argument possible to the court.

The experienced attorneys of Krasner & Long have achieved favorable outcomes for numerous clients charged with statutory sexual assault, rape, child pornography possession, and other serious felony sex crimes in Philadelphia and throughout Pennsylvania. To set up a free and completely private legal consultation, call our law offices at (215) 882-9752 today.

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