This is a very serious crime under California Penal Code Section 288.5(a) – probably one of the most serious sex crime offenses and it carries with it fifteen for life.
I've been doing a lot of these cases in downtown Los Angeles where people are actually looking at fifteen to life.
The prosecutors have really taken a much different turn on these type of offenses, so it's very important to know exactly what the prosecutors have to prove in order to prove this charge of continuous sexual abuse of a minor.
CALCRIM 1120 Jury Instructions – Continuous Sexual Abuse
The judge in a trial on this case is going to read them the following from CALCRIM 1120 Jury Instructions: the defendant is charged with continuous sexual abuse of a child under the age of 14 years old in violation of Penal Code Section 288.5(a).
To prove the defendant guilty of this crime the prosecutors have to prove the following four elements: The defendant lives in the same home or had reoccurring access to a minor child.
So, this is a situation where maybe it's a live-in boyfriend or it's someone who's continuous — maybe a relative who is continuing to go over to the house on a consistent basis.
So, that would fulfill this element number one for the continuous sexual abuse aspect.
- The defendant lives in the same home or had reoccurring access to a minor child. So, this is a situation where maybe it's a live-in boyfriend or it's someone who's continuous — maybe a relative who is continuing to go over to the house on a consistent basis. So, that would fulfill this element number one for the continuous sexual abuse aspect.
- Element number two that is read to the jury in a criminal case in Los Angeles is, the defendant engaged in three or more acts of substantial sexual contact or lewd or lascivious conduct with a child. So, that means there's going to have to be three separate instances in order to get this continuous sexual abuse charge in Los Angeles. So, that's one that sometimes is a problem or the prosecutors because the child might have problems remembering exactly when these alleged acts occurred, but that is definitely a necessary element of a Penal Code Section 288.5(a) violation.
- Element number three talks about three or more months must pass between the first act and the last act or the third act. So, this has to be a period of time. It has to be continuous and the reason, obviously this is so serious is because of the age of the victim, the fact that it's happening multiple times and over a period of time, and that's how the prosecutors, legislature and judges have justified giving defendants fifteen to life in prison for these type of crimes.
- The fourth and final element that has to be proved by the prosecutors in a criminal case pursuant to this Penal Code Section — and this is dictated by Cal. Crim. jury instruction 1120, and that is the child was under 14 years of age at the time of the acts. So, all three of the acts that are mentioned — the child ha to be under the age of 14. So, again, this is another issue I see coming up for the prosecutors because if they can't pinpoint the actual time of the acts, that creates a problem because they need to verify that all three of the acts meet the above elements and also occurred while the child was under the age of 14.
Substantial Sexual Contact
Substantial sexual contact for purposes of this Code Section means oral copulation or masturbation of either the child or the perpetrator or penetration of the child or perpetrator' vagina or rectum by the other person's penis or any type of a foreign object which would include a finger.
So, that's where you're talking about some sort of substantial sexual conduct for purposes of Penal Code Section 288.5(a).
When they talk about oral copulation, you're talking about — it has to be, no matter how slight, between the mouth of one and the sexual organ of another. Penetration is not required for purposes of oral copulation as it relates to continuous sexual abuse in Los Angeles county.
Lewd and Lascivious Conduct
And finally, they talk about lewd and lascivious conduct. There's willful touching of a child, accompanied by the intent to sexually arouse either the perpetrator or the child.
It's not necessary that they actually aroused, but the purpose based on the surrounding circumstances and facts, the jury has to draw the conclusion that, in fact, the individual was trying to arouse another person.
It also indicates that lewd and lascivious also includes causing a child to touch his or her own body or someone else's body at the instigation of the perpetrator who has the required intent necessary to willfully commit this crime of continuous sexual abuse of a child under the age of 14 pursuant to Penal Code Section 288.5(a) in Los Angeles.