Penal Code 288.5 PC - Continuous Sexual Abuse of a Child
California Penal Code 288.5 defines the felony crime of continuous sexual abuse of a child under the age of 14.
It's described as three or more acts of sexual abuse by somebody who lives with the minor or has recurring access to the child over three months or longer. A conviction carries up to 16 years in state prison and a mandatory requirement to register as a sex offender under Penal Code 290 PC after release from prison.
PC 288.5 says, “(a) Anyone who either resides in the same home with the minor child or has recurring access to them, who, over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.”
(b) To convict under this section, the trier of fact, if a jury, needs to unanimously agree only that the requisite number of acts occurred, not on which acts constitute the requisite number.
(c) No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.
A defendant may be charged with only one count under this section unless more than one victim is involved, in which case a separate count may be charged for each victim.”
What is Sexual Conduct?
“Sexual conduct” in context means oral copulation or masturbation of the child or the defendant or penetration of the vagina or rectum. The penetration can occur by the defendant's penis or a foreign object. “Oral copulation” means contact between someone's mouth and the sexual organ or anus of another. Penetration is not required for oral copulation to occur.
Notably, PC 288.5 typically requires some sexual relationship with a minor under 14 because sexual abuse must occur three or more times. Thus, prosecutors will often obtain evidence through DNA or the defendant admitting to the crime.
While there are several California laws prohibiting sexual acts with minors, Penal Code 288.5 PC makes it a more severe crime for someone with access to abuse a child continuously sexually under 14.
What Must Be Proven for a PC 288.5 Conviction?
To convict you of violating Penal Code 288.5 PC continuous sexual abuse of a minor, a prosecutor must prove all the “elements of the crime” beyond a reasonable doubt, including the following:
- You lived in the same home with or had recurring access to the child,
- The child was under the age of 14 when the sexual acts occurred,
- You engaged in three or more acts of sexual conduct or lewd or lascivious conduct with the child,
- The sexual acts occurred over three months or longer.
Under this law, unlawful sexual conduct includes oral copulation or masturbation of the child or yourself or penetration of the child's vagina or rectum with your penis or any foreign object. Oral copulation can be any contact, even slight, between someone's mouth and the intimate parts of their anus, and penetration is not required.
Lewd or lascivious conduct means to willfully touch the child or cause them to touch you or another person for the purpose of sexual arousal or gratification. Notably, the touching can be on bare skin or through their clothes and does not have to occur on their intimate parts.
Penal Code 288.5(c) PC prohibits the court from convicting you of continuous abuse and separately convicting you of any qualifying act occurring within the same period. Convicting twice for the same crime would violate the Fifth and Fourteenth Amendment's double jeopardy clause.
What are the PC 288.5 Penalties?
Penal Code 288.5 continuous sexual abuse of a child is a felony that carries the following penalties if convicted:
- Six, twelve, or sixteen years in state prison,
- A fine of up to $10,000,
- A strike under California's three-strikes law,
- Sex offender registration under Penal Code 290 PC,
- Possible victim restitution,
- Possible immigration consequences because child sexual abuse is a deportable crime of moral turpitude.
The judge might issue a restraining order prohibiting you from having any contact with the child. Further, Child Protective Services might get involved and attempt to remove the child from the home.
PC 288.5 is a “strike” under the three-strikes law because it's considered a serious and violent felony. Habitual sex offenders who have been convicted of two or more certain sex crimes will face a sentence of 25 years to life in state prison.
The lifetime sex offender registration requirement means you must register every year within five days of your birthday or every time you move to a new address. Sometimes, you might be restricted from living near schools and public parks. Certain offenders can petition for exclusion from the California Megan's Law website but must still register as sex offenders with local law enforcement agencies.
What are Related Crimes?
Several California crimes are related to California Penal Code 288.5 continuous sexual abuse of a child under the age of 14, including the following:
- Penal Code 288 PC – lewd acts on a minor. This crime occurs when a perpetrator commits an indecent act on a child under 14, including touching the minor for sexual gratification or causing the minor to themselves or another person. This law is often called “lewd and lascivious acts with a minor child.”
- Penal Code 288(b)(1) – lewd acts with a minor by force or fear. This crime occurs when someone commits a lewd act on a minor child under the age of 14 by using force or fear of bodily injury.
- Penal Code 288(i) – lewd acts with a minor causing harm. This felony crime occurs when someone person commits lewd acts on a minor under 14 to inflict bodily harm in the commission of the offense.
- Penal Code 288.2 PC – sending harmful matter to seduce a minor. This crime occurs when someone sends, distributes, or exhibits harmful or obscene material to a minor 18 to arouse or seduce them sexually.
- Penal Code 288.3 PC – contact a minor to commit a felony. This crime is described as contacting a minor or attempting to, with the intent to commit a sex crime or other serious felony offense involving the minor.
- Penal Code 288.4 PC – arrange a meeting with a minor. This law makes it a crime to arrange a meeting with a minor under 18 with the intent to engage in sexual activity. An actual meeting does not need to occur.
- Penal Code 288.5 PC – continuous sexual abuse of a child. To violate this law, someone must have three or more lewd acts or unlawful sexual touching for three months and by someone with regular access to a minor under 14.
- Penal Code 287 PC – oral copulation with a minor. This law makes it a crime for someone to perform oral copulation with minors under 18.
- Penal Code 261.5 PC – statutory rape. This crime occurs when someone has sexual intercourse with a minor under the age of 18. Notably, consent to having sex from the minor is not a valid defense.
- Penal Code 647.6 PC – child molestation. This crime occurs when somebody annoys or molests a child under 18 or an adult whom you believe to be under 18. Again, sexual consent is not a valid defense.
What are the Legal Defenses for PC 288.5?
If you were accused of continuous sexual abuse of a child under 14, our California sex crime attorneys could use different strategies to obtain the best possible outcome, such as the following:
- You did not have recurring access to the minor.
- There was no sexual conduct in contact with a minor.
- You are being falsely accused.
Recall from above that a prosecutor must prove that you had recurring access to the minor. Often, this means living in the same home, such as a family member. Perhaps we can argue that the prosecution can't prove this element of the crime, which might help you avoid the severe penalties.
Also, recalling it must be proven there were three or more acts of substantial sexual conduct or lewd or lascivious conduct. Perhaps we can show the prosecution they will not be able to prove these elements or other acts that qualify within the definitions of the crime.
Often, sex charges can be hard to prove because of the lack of physical evidence. They typically rely on an alleged victim's testimony, which can be challenged on cross-examination.
Perhaps the alleged victim is lying or was coached by an adult with sinister motives in a child custody dispute in a divorce. Maybe the child is not credible and has made prior false allegations.
Perhaps we can negotiate with the prosecutor for reduced charges, case dismissal, or persuade them not to file formal criminal charges in the first place (DA reject). You can contact us for a free case evaluation to discuss legal options. The Hedding Law Firm is based in Los Angeles, CA.