California Penal Code 288.5 defines the serious sexually related crime of continuous sexual abuse of a child. This offense is described as someone engaging in three or more acts of substantial sexual conduct with a child under 14 years old, occurring over three months or more.
This unlawful behavior must be committed by someone who lives in the same home or has regular access to the child. If you are convicted of PC 288.5, this felony crime is punishable by up to 16 years in state prison.
The related crime of lewd acts on a minor, defined under Penal Code 288 PC, makes it a crime to commit a single-sex act with a child under the age of fourteen. A conviction under PC 288 is punishable by up to ten years of imprisonment.
The separate statute, but more serious, Penal Code 288.5 PC, deals with a situation where someone with routine access to a child under 14 continuously sexually abuses them. The criminal charges will become even more severe with each sexual act.
A conviction for violating PC 288.5 will be mandatory to register as a sex offender under Penal Code 290 PC. Our Los Angeles criminal defense attorneys will examine this topic in more detail below.
What Is the Legal Definition?
California Penal Code 288.5 PC legally defines the crime of the continuous sexual abuse of a minor as follows:
- “Anyone who either resides in the same home with a minor child or has recurring access to them, and who, over 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 14 years at the time.“
To be convicted of a continuous sexual abuse of a minor charge, the prosecutor must be able to prove several crucial factors beyond a reasonable doubt. These are called the “elements of the crime” and are listed under California Criminal Jury Instructions 1120 as follows:
- a child under 14 years old;
- three or more substantial sexual conduct acts or lewd or lascivious conduct;
- duration requirement of at least three months or more
What is substantial sexual conduct? It means oral copulation or masturbation of the minor or perpetrator, penetration of the minor's vagina or rectum with the defendant's penis, or using a foreign object. “Oral copulation” is contact between somebody's mouth on someone else's sexual organ or anus. Actual penetration of an intimate part is not required.
What is lewd and lascivious conduct? It means the willful touching of a minor with the intent of sexual arousal of the child or defendant. To be convicted, it's not required to have contact with the child's bare skin or their private parts, but rather any of the following:
- touching any part of the child's body,
- the clothes the child is wearing, or
- causing a minor to touch their own body or another person,
- for the purpose of sexual gratification.
Related California crimes are Penal Code 288b1, lewd acts with a minor by force or fear, and Penal Code 288.7, sexual acts with a minor under ten years old.
What Are the Penalties for PC 288.5?
A conviction for PC 288.5, continuous sexual abuse of a child, carries the following penalties:
- six, twelve, or sixteen years in state prison,
- a strike under California's three-strikes law.
Further, registration as a sex offender under Penal Code 290 PC could be ordered by the judge.
Some offenders may submit a petition for exclusion from the California Megan's Law website, but they must still register with local law enforcement agencies. This offense is considered a deportable crime of moral turpitude for a non-citizen defendant.
Constitutional Rights
California Penal Code 288.5(b) allows jurors to disagree on which acts constitute the requisite three. Likewise, Penal Code Section 288.5(c) PC prohibits a conviction for continuous abuse and separately convicting them of any qualifying act occurring within the same period.
In other words, our criminal lawyers might be able to raise constitutional challenges permitting non-unanimous convictions on any element of a charge, like the three acts qualifying for conviction of continuous sexual abuse of a minor.
How Can I Fight The Charges?
We can use several defense strategies against Penal Code 288.5 continuous sexual abuse of a child charges, based on the details of the case, such as other ways beyond constitutional challenges. Some common defenses from our California criminal defense lawyers include the following::
- There was no recurring access,
- There was no sexual conduct,
- False accusation.
Recall from the elements of the crime that this statute only applies to minors under 14 in a home and that a defendant had regular access. Further, as noted, the prosecutor must prove there were three or more acts of substantial lewd or lascivious conduct.
We might be able to make a reasonable argument that the prosecution can't prove some or all of these factors beyond a reasonable doubt. Sex offenses can often be difficult to prove when there is a lack of physical evidence.
We might be able to negotiate with the prosecutor for reduced charges or a case dismissal. Through prefiling intervention, which includes negotiating with law enforcement detectives and prosecutors, it might also be possible to avoid the formal filing of criminal charges (DA reject) in the first place.
Cron, Israels & Stark is located in Los Angeles County. We serve individuals in all Southern California courts, including those in Orange County, Ventura County, Riverside County, and San Bernardino County. Our law firm offers a free case evaluation. Call (424) 372-3112 or fill out our contact form.
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