Continuous Sexual Abuse Conduct or Result Oriented Crimecrime

Crime of Continuous Sexual Abuse of a Child (LEGAL ANALYSIS of Penal Code 288.5)

Penal Code 288.5 PC defines the crime of continuous sexual abuse of a child under the age of 14. To prove this charge, the prosecutor must show that

there were three or more instances of sexual abuse,
by someone who lives in the same home or has recurring access to the child,
over a duration of three months or longer.

The offense is afelony punishable by up to16 years in state prison.

The full language of the code section reads:

288.5. (a) Any person who either resides in the same home with the minor child or has recurring access to the child, 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, need 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.

Examples

a stepfather having sex with his 8-year-old stepdaughter four times over an eight-month period.
a teacher groping a child at daycare six times in the course of four months.
a 17-year-old constantly sneaking into the house next door (over the duration of seven months) to have sex with a 13-year-old girl.

Defenses

A defendant can assert a legal defense to challenge an accusation under this statute. Common defenses include:

no "child,"
no sexual act, and/or
falsely accused.

Penalties

A violation of this statute is afelony. This is opposed to a misdemeanor or an infraction.

The offense is punishable by custody in state prison for up to 16 years.

Our California criminal defense attorneys will explain the following in this article:

young boy with sad expression

Penal Code 288.5 PC makes it a crime to engage in the continuous sexual abuse of a young child.

1. How is "continuous sexual abuse of a child" defined?

A prosecutor must prove the following to convict a person of continuous sexual abuse of a child:

the defendant lived in the same home with or hadrecurring access to a minor child,
the accused engaged inthree or more specific acts of sexual abuse with the child,
three or more months passed between the ﬁrst and last acts¹, and
the child wasunder the age of 14 years at the time of the acts.²

"Sexual conduct," under this statute, means:

oral copulation or masturbation of either the child or the perpetrator, or
penetration of the child's or perpetrator's vagina or rectum.

This penetration can be by the other person's penis or any foreign object.³

"Oral copulation" is defined as any contact, no matter how slight, between:

themouth of one person, and
thesexual organ or anus of another person.

Penetration isnot required for oral copulation.⁴

2. Are there legal defenses?

A defendant can fight a charge under this statute with alegal defense.

Three common defense strategies to charges of continuous sexual abuse of a child are to show that:

the child was older than 13 when the act took place,
the contact with the child was not sexual in nature, and/or
the defendant is being falsely accused.

As long as the D.A. cannot prove guilt beyond a reasonable doubt to the trier of fact, the charge should be dropped.

2.1. No child

A person is only guilty under this statute if he/she had sexual conduct with achild under 14. This means it is always a defense for an accused to show that the "victim" was age 14 or older.

2.2. No sexual act

These laws only apply tosexual conduct with a child. Things like innocent physical contact with a child are not prohibited. Therefore, it is a defense for the accused to show that:

while he may have come into contact with a child,
it was not sexual conduct.

2.3. Falsely accused

This area of the law is unfortunately filled withfalse accusations. Children falsely accuse "perpetrators" for a variety of reasons. Some include:

a child got confused about what happened,
a parent or adult "coached" a child into making up a false story, and
a child lied to get an adult out of his/her home.

No matter the reason, it is a defense under this statute for:

an accused to say that,
he/she was unjustly blamed.

Other potential defenses to child sex crime charges include law enforcement misconduct, such as the police coercing a confession or performing an illegal search and seizure.

man being led to a jail cell; continuous sexual abuse of a child per Penal Code 288.5 PC is punishable by up to 16 years in prison

A guilty adjudication under this law can result in prison for a time period of up to 16 years.

3. What are the penalties?

A violation of this statute is afelonyoffense in California.

The crime is punishable by custody instate prison for up to 16 years.⁵

Note that this offense also counts as a strike under California's three-strikes law.⁶

Further, convictions under these laws impose a lifetime sex offender registration requirement.

4. Are there immigration consequences?

A conviction under this statutewillhave negative immigration consequences.

A non-citizen defendant guilty of the continuous sexual abuse of a child victim could be either:

deported, or
marked as inadmissible.⁷

5. Can a person get a conviction expunged?

A person convicted for continuous sexual abuse of a minor will likely not get awarded an expungement.

By law, expungements areprohibitedif a defendant receivesprison time. This is opposed to time in county jail.

Since violations of Penal Code 288.5 result in a prison sentence, an expungement of the criminal case is unlikely.

6. Does a conviction affect gun rights?

A conviction of "continuous sexual abuse of young child or children" will adversely affect a defendant's gun rights.

California law says that convictedfelons cannot:

purchase a gun,
own a gun, and/or
possess a gun.

Since convictions under these laws are felonies, they strip away a defendant's gun rights.

7. Are there related offenses?

California's child molestation laws can be found in numerous statutes. Three common sections are:

lewd acts with a minor child – PC 288,
lewd acts with a minor child by force or fear – PC 288b1, and
sexual acts with a child under 10 – PC 288.7.

7.1. Lewd acts with a minor child – PC 288

Penal Code 288 PC is the California statute that defines the crime of "lewd and lascivious acts with a minor child."

A "lewd act" is either:

touching a child for sexual purposes, or
causing a child to touch him/herself or someone else for a sexual purpose.

For purposes of this statute, a minor child is a child under 16 years of age.

7.2. Lewd acts with a minor child by force or fear – PC 288b1

Penal Code 288b1 PC is the California statute that makes it a crime for a person to:

commit a lewd act on a minor child under the age of 14, and
do so by using force or fear of bodily injury.

A "lewd act" under this statute has the same definition as used within PC 288.

7.3. Sexual acts with a child under 10 – PC 288.7

Penal Code 288.7 PC punishes a person if he/she has sex with a child under the age of 10.

A sexual offense conviction under this section triggers life in prison, even upon a first offense.

Also see our related articles on aggravated sexual assault of a child (PC 269), trafficking of persons (PC 236.1),

For additional help…

receptionists with laptops and headsets

Contact our criminal law firm for legal advice. Our experienced criminal defense attorneys are available 24/7.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. Our criminal defense lawyers have law offices throughout California.

See our related articles on child pornography, restraining orders, statutes of limitation, affirmative defenses, and aggravated kidnapping.

For information on similar crimes under Nevada, Colorado, and Texas law, please see our articles on:

"Nevada Laws for Child Sexual Abuse / Child Molestation,"
"Colorado Sexual Assault on a Child Laws" and "Public Indecency", and
"Sex Offender Registration in the state of Texas" (including for compelling prostitution and sexual performance of a child)

Legal References:

strublekinganduld.blogspot.com

Source: https://www.shouselaw.com/ca/defense/penal-code/288-5/