California Penal Code 288.5 PC defines the serious sexual-related crime of continuous sexual abuse of a child as engaging in three or more acts of substantial sexual conduct with a child under 14 occurring over three months or more.
The unlawful conduct has to come from somebody who either lives in the same house or has regular access to the child. If convicted, this felony sex crime is punishable by up to 16 years in state prison.
A similar crime is Penal Code 288 PC lewd acts on a minor, which makes it a crime to commit a single act of lewd or lascivious behavior with a child under the age of fourteen, and punishable by up to ten years of imprisonment. You must register as a sex offender under Penal Code 290 PC if convicted of violating this law.
Penal Code 288.5 PC defines this crime as: “Anyone who either resides in the same home with the minor or has recurring access to the child, and who over time, not less than three months in duration, engages in three or more acts of substantial sexual conduct or lewd or lascivious conduct with a child under the age of 14 years at the time of the commission of the offense.”
To secure a conviction, the prosecutor must prove all the elements of the crime listed under California criminal jury instructions 1120 beyond a reasonable doubt.
“Substantial sexual conduct” in this law means oral copulation or masturbation of the minor or accused or penetration of their vagina or rectum by the other person's penis or a foreign object.
“Oral copulation” is contact between someone's mouth, the sexual organ, or the anus of someone else. Penetration of an intimate part is not required. Our California sex crime defense attorneys will examine this law in more detail below.
What is Lewd and Lascivious Conduct?
“Lewd and lascivious conduct” refers to any willful touching of a minor intending to sexually arouse them or the perpetrator. For lewd conduct to occur, it's not required to have contact with the minor's bare skin or their private parts, instead:
- the perpetrator could touch any part of the child's body, or
- the clothes minor is wearing, or
- cause the minor to touch their own body, or
- another person's body for sexual gratification.
The related California offenses include Penal Code 288b1, lewd acts with a minor by force or fear, and Penal Code 288.7, sexual acts with a minor under 10.
What Are the Legal Penalties for Penal Code 288.5?
As to punishments, a conviction for violating Penal Code 288.5 carries:
- six, twelve, or sixteen years in state prison,
- a strike under the three-strikes law.
As noted above, a conviction for Penal Code 288.5 PC would include registration as a sex offender under Penal Code 290 PC.
Certain offenders can petition for exclusion from the California Megan's Law website, but they still must register as sex offenders with local law enforcement agencies.
California appellate case law has upheld that child sexual abuse is also a deportable crime of moral turpitude for any defendant who is not a citizen of the United States.
Penal Code 288.5 PC - Explained
This is one of the more severe charges that someone can be charged with regarding sex offenses. Regarding what you could be facing, the charge range could take the case up to 16 years in prison, and you would also be facing a lifetime registration.
As far as what the prosecutors need to prove, obviously, they will need to prove that there are three or more instances of sexual abuse of somebody 14 years old or under.
They also have to show that the victim lives with the defendant or they have reoccurring access to the victim, and it has to be over three months or longer. This is where continuous sexual abuse occurs.
The charge range is 6, 12, or 16 years in prison if you're convicted for this offense. If you go to jury trial and lose, a judge will decide the ultimate punishment.
Another option would be to negotiate through your attorney with the prosecutors to get something less than 16 years in prison or even get a lesser charge so you can go under the minimum sentence of 6 years in prison.
Of course, the problem with this crime is that you typically have a young victim, and it's not just a one-time occurrence. So, prosecutors and judges will look at all the facts and details. They'll look at your criminal record and a host of other factors when deciding how they want to handle your case.
What Are the Defenses for PC 288.5 Charges?
Your best bet is to get to an attorney like me who's been doing this for nearly 30 years at the state and federal levels. We'll sit down and go over the details, and then we'll put together a game plan that makes sense for you and your situation.
Then, I will set about executing the plan for negotiations with the prosecutor, putting together a mitigation package, and obviously, doing everything I can to get the possible result for you. Some of the common legal defenses include:
- no recurring access,
- no sexual behavior,
- false accusation.
This crime also requires proof of acts of substantial sexual, lewd or lascivious conduct.
Thus, perhaps we can argue that the prosecution may not be able to prove many acts or that the actions qualify within the definitions of those terms.
Also, we can draft, file, and argue a bail reduction motion to ensure you are given the best opportunity to assist with the defense.
So, if you or a loved one is charged for Penal Code Section 288.5, continuous sexual abuse of a child 14 years or younger, pick up the phone now. Ask for a meeting with Ron Hedding.
Let my experience with the District Attorney's office and superior court judge and my experience for the past 30 years as a criminal defense attorney work for you.
If you need the best, pick up the phone now. Ask for a meeting with Ron Hedding. I stand at the ready to help you. The Los Angeles-based Hedding Law Firm offers a free case evaluation by phone or contact form.