In California, many people are convicted of sexual crimes. Continuous sexual abuse of a child is one of California's most common and severe sex crimes. Continuous sexual abuse of a child is a crime charged under Penal Code 288.5 of California law. You could face severe penalties and hefty fines if you are guilty of this crime. You could also lose some rights, like owning a gun, and face negative immigration consequences, among others. If you or a loved one is accused of continuous sexual abuse of a child, you should seek the services of a competent criminal attorney to help you navigate the legal system and defend your rights.
Continuous Sexual Abuse Of A Child — Penal Code 288.5
The crime of continuous sexual abuse of a child is defined under Penal Code 288.5. This statute requires the prosecutor to prove some elements to charge you with this crime. The elements the prosecutor must prove are:
- You lived in the same home with or had recurring access to the child
- You engaged in three or more specific sexual acts or sexual abuse with the child
- Three or more months passed between the first and last acts
- The child was under the age of 14 years at the time of the acts
Under Penal Code 288.5, ‘’sexual conduct’’ involves the following:
- Penetrating the child’s vagina or rectum — Penetration can be by your penis or a foreign object.
- Masturbation on the child or oral copulation
Oral copulation means any contact between a sexual organ or anus of a person with another person's mouth. It means any contact between your mouth and the sexual organ or anus of the child or any other person. Penetration is not necessary for oral copulation charges to apply.
Penalties For Continuous Abuse Of A Child
In California, the crime of continuous abuse of a child is charged as a felony. This offense is punishable by:
- A jail term that does not exceed 16 years in state prison.
- A fine that does not exceed $10,000
If you are sentenced to prison, you are expected to serve 85% of your sentence, even if you receive good time conduct credits. Usually, a mid-term sentence for continuous sexual abuse of a child is twelve years, and a low-term sentence is six years.
Restitution to the victim
The court could order you to reimburse the victim if the victim provides evidence showing that he/she incurred doctor's or therapist's bills associated with the offense. The court could also order you to reimburse the county for booking fees and other court security fees.
Probation Sentence
Under California law, a probation sentence is a period of supervision in lieu of prison. Under special circumstances, you can serve a probation sentence after a conviction of Penal Code 288.5. What makes a special situation is judged on a case-by-case basis. However, it could include the following:
- The case where the child does not want you to serve a prison sentence
- If you have no criminal history
- The facts of your case tend to show significant mitigation in terms of the severity of your behavior.
- The harm to the child is low.
The court can't grant you probation if the allegations against you include substantial sexual conduct enhancement, according to Penal Code 1203.066.
Restraining Order
The court could issue a restraining order to stop you from making any contact with the minor if you are found guilty of continuously abusing a child sexually. In addition, while serving time in prison for a Penal Code 288.5 conviction, you could also be denied visits from the child, even if the child is your family member.
Three Strike Law
According to California's Three Strike Law, this crime also counts as a strike. Usually, this crime is considered a strike crime in California since it is a severe and violent crime. Therefore, if you are found guilty of PC 288.5, you could suffer a strike conviction and incur greater punishment for subsequent conviction of any felony according to PC 1192.7 and PC 667.5 of California law.
Sex Offender Registration
You could also have to register as a sex offender. The registration requires you to register at your local police station. You will be required to do this every year within five days of your birthday. Usually, the registration includes restrictions on where you can live.
Professional License
If you are guilty of violating Penal Code 288.5, you will likely face negative repercussions for your professional or occupational license. The repercussions could include suspension, revocation, and other disciplines. This applies to all board, bar, and commission members, including teachers, cosmetologists, doctors, therapists, nurses, lawyers, and counselors.
Child Protective Service Issues
The Los Angeles County Child Protective Services could get involved when you are accused of having sexual contact with a child. They could take the child from home during the court process. In addition, child protective services could remove any remaining child from your home, and your name could be listed on the Child Abuse Central Index (CACI).
Immigration Consequences
You could face negative immigration repercussions if the court convicts you of continuous abuse of a child in California. This offense is considered a crime involving moral turpitude. An undocumented immigrant would most likely be marked as inadmissible or deported. If you serve more than one year in prison, the offense will also be considered an aggravated felony. Non-United States citizens, including permanent residents that are charged with PC 288.5, could be deported and denied readmission after serving their prison sentence.
Gun Rights
Similarly, this crime could adversely affect your gun rights. For example, upon a conviction of a felony in California, the law does not allow you to possess, own, or purchase a gun.
Additionally, you can’t be awarded an expungement after a continuous sexual abuse of a child conviction. The law does not allow you to get an expungement if you have received prison time.
Defenses To Continuous Abuse Of A Child Charges
Under Penal Code 288.5 of California law, you can raise legal defenses to contest your charges. Some of the defenses you could raise include the following:
You Were Falsely Accused
Unfortunately, this area of the law in California is often filled with false accusations. A child could accuse you falsely for a variety of reasons. Some include:
- A child could lie to get you out of the home
- A child could be confused about what happened
- An adult or a parent coached the child into making up a false story
Insanity Defense
Your attorney could present an insanity defense if you had a disease or defect of the mind at the time of the crime. For example, a defect of the mind could be sufficient to make you unable to differentiate between right and wrong or appreciate the nature and quality of the act you are committing. This kind of circumstance could entitle you to the defense of insanity.
Insufficient Evidence
Your attorney could allege that there is no substantial evidence to prove an element of the charge, including touching. Your attorney could also allege that it was an accidental touch or that there is no evidence of your state of mind. You could also argue that there is no evidence to show that at least three acts happened over a period that exceeded three months, or that there is no evidence to show the victim's age.
No Sexual Act
Penal Code 288.5 of the California law applies only to sexual conduct with a child. This statute does not prohibit things like innocent physical contact. Therefore, you could allege that while you could have come into contact with the child, it was not sexual contact.
No Child
You are only guilty under Penal Code 288.5 if you had sexual conduct with the child less than 14 years. However, you could allege that the victim was over 14 years old.
Plea Bargain
Plea bargains could happen in two ways: charge bargaining and sentence bargaining. The district attorney could be willing to reduce your charges or sentence you to probation based on the facts of the case.
Penal Code 654 Defense
You could face charges for each lewd and lascivious act individually and as a continuous offense under Penal Code 288.5. However, during sentencing, the judge can only sentence you to the individual act or the continuous behavior offense charged under Penal Code 288.5. If the essence of the crime is a continuous course of action, then your sentence could be lighter. On the other hand, the sentence for each lewd and lascivious act could be more, which carries eight years in prison.
Expiry Of Statute Of Limitations
A statute of limitation is the law that limits the period a district attorney has to prosecute your charges, including PC 288.5 charges. In California, the statute of limitations for PC 288.5 and other underlying PC 288 charges for lewd and lascivious acts is complex. The prosecutor is required to start prosecuting PC 288.5 or PC 288 charges within one year of the discovery of the crime. If the prosecutor delays doing so, you could present an expired statute of limitation defense, and your charges could be dismissed.
Intoxication
This defense could be valid in case of voluntary intoxication. The intoxication could have been so severe that you failed to differentiate between right and wrong or the nature and consequences of your acts.
Coerced Confession
If the law enforcers coerce your confession, then your confession could be suppressed and unavailable to the district attorney to use in your prosecution. Likewise, if the law enforcers took unauthorized recordings, this evidence could also be suppressed, and the charges against you could be dropped.
Mistake Of Fact
A reasonable mistake that you were touching another person could be a defense. Reasonable mistakes as to the child's age could also be a defense.
Crimes Charged Alongside Continuous Sexual Abuse Of A Child
Child molestation laws in California are found in many statutes. The typical sections are:
Lewd Acts With A Minor Child — Penal Code 288
The offense of lewd acts with a child is defined under PC 288 of California law. The crime is also known as child molestation, which involves touching a child under 14 years of age for sexual purposes. You could commit this crime when you either:
- Willfully touch any part of the child’s body
- Intentionally causing the child to touch their body, your body, or the body of someone else
You could face penalties under PC 288 based on the following:
- Your criminal record
- The age of the child
- Whether you used force or threats
If you have a prior sex crime conviction, you could face charges under habitual sexual offender statute PC 667.71(b). You could face a jail term of 25 years to life imprisonment in state prison if you are found guilty of being a habitual sex offender.
According to Penal Code 288(c)(1), it is an offense to commit a lewd act against a child 14 or 15 years if you are ten years older than the child. This is a wobbler crime in California, and the prosecutor could charge you with a misdemeanor or a felony based on the following:
- Prior criminal history
- The facts of your case
You could face a jail term of one year in county jail if you are charged with a misdemeanor. You could face the following if accused of a felony:
- One year in jail and felony probation
- A jail term of 16 months, two years, or three years
Lewd Acts With A Minor By Force or Fear — Penal Code 288(b)(1)
It is a crime under PC 288(b)(1) for anyone in California to do the following:
- Commit a lewd act on a minor under the age of 14
- Do so by using force or fear of bodily injury
Under California law, a ‘’lewd act’’ include:
- The willful touch of a child for sexual purposes
- Purposefully causing a child to touch themselves or another person for a sexual purpose
The prosecutor could charge a violation of PC 288(b)(1) as a felony under California law. You could face a jail term of five, eight, or ten years in state prison. The judge could also order you to do felony probation instead of prison time. You could also have to register as a sex offender for the rest of your life.
However, you could try to contest your charges by raising legal defenses. The legal defenses could work to reduce or dismiss your charges. The common defenses you could present could include the following:
- No probable cause- according to the Fourth Amendment to the U.S Constitution, the police must have probable cause before they arrest or detain you for a crime
- No force or fear- you can only be guilty under PC 288(b)(1) if you commit a lewd act using force or fear. This defense is valid if you show that your actions did not amount to force and fear.
- The alleged victim was 14 years or older.
Sexual Acts With A Child Under Ten Years — Penal Code 288.7
It is a crime under Penal Code 288.7 in California for any person to have sex with a child under the age of ten. If the prosecutor accuses you of engaging in sex with a child under the age of ten, this statute requires that the prosecutor proves the following elements:
- You engaged in sexual intercourse, sodomy, oral copulation, or sexual penetration with the child
- When you did so, the child was ten years or younger
- You were at least 18 years old at the time of the act
In California, violation of Penal Code 288.7 is a felony. You could face a jail term in a state prison. The judge will sentence you based on the type of sexual act you commit.
If you engaged in sodomy or sexual intercourse, according to PC 288.7a, you could serve a jail term of 25 years to life in a state prison. If you engaged in sexual penetration or oral copulation, according to PC 288.7b, you could serve a jail term of 15 years to life in prison.
If you are charged under PC 288.7 and receive a penalty of a set number of years in prison with possible life imprisonment, you have to serve a minimum number of years imposed. You could then be released from jail, but only by a positive determination in a California Parole Board Hearing. The judge could also issue a criminal protective order against you once you are convicted of violating PC 288.7. the order will prohibit you from having contact with the child.
You could contest your charges under PC 288.7 as follows:
- You are a victim of false accusation
- No sexual contact
- The victim was not under ten years of age
Find Criminal Defense Attorney Near Me
If you face accusations of continuous sexual abuse of a child, you need to talk to a qualified sex crimes attorney. The ramifications of the charge are wide-reaching and devastating to many areas of your life. Your attorney will thoroughly investigate your charges, keeping a keen eye out for evidence that could potentially exonerate you. At the Los Angeles Criminal Attorney, we have defended thousands of clients with the best outcomes. Contact us at 424-333-0943 to make a free consultation.
