Juvenile Sex Crimes -Child on Child Sexual Abuse

Society tends to perceive sexual offending as crimes committed by adult men against women, and especially against children of both sexes. Those who commit sex offenses against minors and younger children are often believed to be predators and pedophiles and thus understood to be adult perpetrators of child molestation and violent rape crimes. This is not always the case.

Unfortunately, juveniles themselves are also responsible for committing serious sex offenses against other minors in California.

In this section, our juvenile defense attorneys at Wallin & Klarich will explain the differences between delinquency hearings in juvenile court and prosecution in criminal court for specified felony sex offenses. We identify what types of child on child sexual abuse qualify for discretionary criminal prosecution and which ones require being heard in a criminal rather than a juvenile court.

We will also cover the consequences a juvenile may face if he or she is adjudicated delinquent (found “guilty”) or convicted as an adult of a sex offense. We will conclude with answers to some Frequently Asked Questions from our readers.

We begin with some of the facts about juveniles who commit sex offenses against other minors.

Facts about Child on Child Sexual Abuse

According to the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention (OJJDP)¹, facts regarding child on child sexual abuse are as follows:

• Juveniles account for more than one-third (35.6%) of those known to law enforcement to have committed sex offenses against other minors;
• Child on child sexual abuse is more likely than adult sex offenses to occur in groups and at schools;
• Child on child sexual abuse tends to involve more male and younger victims;
• The percentage of child on child sexual abuse is highest between ages 15 and 17;
• Child on child sexual abuse most often occurs in the home (68% of the time), somewhat less than that of adult sex offenses (80%);
• Offenses against teenagers are typically higher among mid to late adolescence while offenses against victims under the age of 12 are typically lower;
• About 1 out of every 8 juvenile offenders is under the age of 12; and
• Child on child sexual abuse comprises more than one-quarter (25.8%) of all sex offenses.

Those who have been identified as having committed child on child sexual abuse cover a broad age range:

• 5% are under the age of 9 years;
• 16% are less than 12 years old;
• 38% are between ages of 12 and 14;
• 46% are between ages 15 and 17; and
• 93% are male.

Juveniles identified as having committed child on child sexual abuse are more likely than adults to do the following:

• Offend in groups with one or more co-offenders (24% for juveniles versus 14% for adults);
• Offend at a school (12% versus 2%);
• Commit sodomy (13% versus 7%) and fondling (49% versus 42%);
• Target younger children under the age of 12 (59% versus 39%); and
• Victimize males (25% versus 13%)

Minors are less likely than adults to commit rape (24% versus 31%). Like adults, minors will sexually offend in the privacy of the home (about 69% of the time) more often than in public places.

Detainment for Committing Child on Child Sexual Abuse

In most cases, a “minor” (a child under the age of 18) appears in delinquency court because he or she has been arrested and accused of breaking the law. Upon arrest and investigation, the law enforcement agency determines whether the minor may be released to the custody of his or her parent(s) or guardian(s), or if the minor is to be detained in Juvenile Hall.

If a minor is arrested, the police can:

• Make a record of the arrest and let the minor return home;
• Send the minor to a foster home that will shelter, care for, and/or counsel the minor;
• Detain the minor in police custody;
• Release the minor into parental custody and give him or her a “Notice to Appear”; or
• Place the minor in Juvenile Hall (referred to as “detention”) pending further proceedings.

Adjudication vs. Prosecution of Child on Child Sexual Abuse

Voluntary sexual activity between minors ages 14 to 17 where no force, fear or threat of bodily harm (in other words “consensual” sex) is generally punishable as a misdemeanor and may receive juvenile court treatment.

If a minor 14 years of age or older sexually abuses a child under 14, the juvenile offender can face felony charges. Provided that the alleged juvenile offender does not have a serious arrest record, the matter may stay in the juvenile courts.

However, under certain circumstances, depending on a minor’s prior criminal history and whether force (a “rape” crime) was involved, regardless of the age of the victim, a prosecutor maintains discretion to file a charge directly against and prosecute a minor in adult criminal court.

In cases of murder and certain forcible sex offenses committed under aggravated circumstances, California law requires that minors over age 14 be prosecuted as adults.

Sentencing and Punishment of Child on Child Sexual Abuse

A minor found delinquent (“guilty”) of committing child on child sexual abuse by a juvenile court is subject to a broad range of treatment, from home probation for a specified period of time to custody in a juvenile justice facility until the age of 25, depending on:

• The severity of the offense;
• The risk to the public; and
• The delinquent minor’s needs.

A minor convicted of a felony sex offense in a criminal court is subject to the same sentencing and punishment authorized by law for an adult offender. This may include:

• Formal probation supervision;
• A lengthy sentence in an adult prison;
• A maximum fine of $10,000; and/or
• A “strike” on the juvenile’s record under California’s Three Strikes law.

Finally, and perhaps most devastating, a minor charged with a sex offense may be subject to lifetime sex offender registration pursuant to California’s Sex Offender Registration Act (Penal Code section 290).

Mandatory sex offender registration applies if a juvenile sex offender is sent to a juvenile justice facility upon adjudication as delinquent, or upon conviction as an adult, whether or not he or she is sent to prison.

Child on Child Sexual Abuse – Adjudication vs. Prosecution

Juveniles charged with committing child on child sexual abuse may be able to have their cases heard in the juvenile court system, or they may be prosecuted as adults, depending on the severity of the offense and the juvenile offender’s personal history.

In juvenile court, a minor is adjudicated, rather than prosecuted. The differences between juvenile “adjudication” as a minor and “conviction” as an adult are significant.

In juvenile court, a minor has no right to a jury. The judge makes the final decision. However, a judge’s finding of “guilt” means that the minor has been determined to be “delinquent,” rather than criminally convicted as would be an adult.

An adjudicated minor is subject to a sliding scale of treatment, from informal probation to commitment in the custody of the California Department of Corrections and Rehabilitation, Division of Juvenile Justice up to a certain age.

A minor referred to a criminal court for a sex offense has the same rights as an adult. However, he or she also faces the same adult treatment and punishment if convicted of the alleged crime.

The Juvenile Delinquency Court System

California does not prosecute juveniles under the age of 14 under any circumstances. But when a minor 14 years or older breaks the law, there are several ways he or she may be treated within the legal system.

A minor charged with child on child sexual abuse is subject to the following four-step process:

1. Detention Hearing: Determines whether a minor detained in juvenile hall must remain there pending a resolution in the case;
2. Fitness Hearing: Decides whether a juvenile case may be heard in juvenile delinquency court or must be transferred to adult court;
3. Adjudication: The equivalent of a trial in juvenile court, only decided by a judge rather than a jury; and
4. Disposition Hearing: How an adjudicated delinquent minor is to be treated (or “sentenced”) if the judge sustains the petition against the minor.

Child on Child Sexual Abuse May Be Subject to a Fitness Hearing

Violent felony sex crimes may require a hearing to determine whether a juvenile is ineligible (or “unfit”) to be adjudicated as delinquent (Welfare & Institutions Code section 707 (b)). A fitness hearing will evaluate the minor accused of an offense on the following criteria:

1. The degree of criminal sophistication exhibited by the minor.
2. Whether the minor can be rehabilitated prior to the expiration of the juvenile courts jurisdiction.
3. The minor’s previous delinquent history.
4. Success of previous attempts by the juvenile court to rehabilitate the minor.
5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Section 707(b) hearings apply to a minor 16 years of age or older, alleged to have committed any felony offense when the minor has been declared to be a ward of the court pursuant to Welfare & Institutions Code section 602 on one or more prior occasions if both of the following apply:

• The minor has previously been found to have committed two or more felony offenses;

• The offenses upon which the prior petition or petitions were based were committed when the minor became 14 years of age.

If the court determines that the minor is “unfit,” his or her case is transferred to superior court and is subject to prosecution in a traditional criminal proceeding.

Child on Child Sexual Abuse May Be Subject to Direct Filing

Additionally, under Welfare & Institutions Code section 707(d)(2), the prosecutor can bypass the fitness hearing altogether and “direct file” charges in superior court against a minor 14 years of age or older under the following conditions:

• The minor is alleged to have committed an offense which, if committed by an adult, is punishable by death or life imprisonment;

• The minor is alleged to have personally used a firearm during the commission or attempted commission of a felony;

• The minor is alleged to have committed a forcible sex crime listed in Welfare and Institutions Code 707(b); and:
  • • Has previously committed a qualifying Welfare and Institutions Code 707(b) offense;
    • The crime was gang-related;
    • The offense was a hate crime; or
    • The victim was 65 or older or disabled.

Child on Child Sexual Abuse Requiring Prosecution as an Adult (Welfare and Institutions Code 602 (b))

Minors who commit certain violent crimes under extenuating circumstances are presumed to be unfit for juvenile treatment.

California Welfare & Institutions Code section 602 (b) (Welfare and Institutions Code 602(b)) requires prosecution as an adult of any person 14 years of age or older alleged to have committed one of the following offenses under aggravated circumstances:

1. Murder (Penal Code section 187), if the prosecutor alleges special circumstances under Penal Code section 190.2 were involved and that the minor personally killed the victim;
2. Forcible rape (Penal Code section 261 (a)(2));
3. Spousal rape (Penal Code section 261 (a)(1));
4. Forcible sex offenses acting in concert with another (Penal Code section 264.1);
5. Forcible lewd and lascivious acts with a child under the age of 14 (Penal Code section 288 (b));
6. Forcible sodomy (Penal Code section 286);
7. Forcible oral copulation (Penal Code section 288a);
8. Forcible sexual penetration using a foreign object (Penal Code section 289 (a)); or
9. Lewd and lascivious acts with a child under the age of 14 (Penal Code 288 (a)), unless the defendant is eligible for probation under Penal Code section 1203.066.

Similar to a murder charge described above, a prosecutor must allege the following two additional facts for mandatory criminal prosecution to apply in a child on child sexual abuse case:

• The minor personally committed the offense, and

• One of the circumstances listed in California’s One Strike law (Penal Code section 667.61 (d)-(e)) applies.

California’s One Strike law authorizes punishment of 25-years-to-life in prison for violent crimes committed under special circumstances.

Child on Child Sexual Abuse Cases That May Be Subject to Adjudication

Because California law does not allow minors to give legal consent under the age of 18, it is unlawful for minors to participate in voluntary sexual activity with other minors. As such, a minor may be criminally charged and tried as an adult for engaging in voluntary sexual activity with another minor.

Some sex offenses, if committed between minors 14 to 17 years old, are charged as either a straight misdemeanor, or as a “wobbler” – meaning a prosecutor has discretion to file the offense as either a misdemeanor or a felony. Either way, the following offenses do not require adult prosecution:

• Unlawful sex (intercourse) with a minor or “statutory rape” (Penal Code section 261.5);
• Participating in oral copulation with a minor (Penal Code section 288a (b)(1));
• Participating in sodomy with a minor (Penal Code section 286 (b)(1));
• Participating in sexual penetration using a foreign object with a minor (Penal Code section 289 (h));

If a juvenile is charged with any of these offenses, the juvenile courts may be able to retain jurisdiction.

Lewd and Lascivious Acts with a Child (Penal Code section 288 (a))

A minor 14 years of age or older who engages in sexual activity with a child under the age of 14 is subject to being charged with the felony crime of lewd and lascivious acts with a child or “child molestation” pursuant to Penal Code section 288 (a).

While child molestation does not necessarily mean the child victim was forced, this sex offense is very serious and is considered a violent crime (or “strike”) under California’s Three Strikes law.

A minor accused of molesting a child under the age of 14 is eligible for treatment within the juvenile court system, provided that he or she is not deemed unfit for juvenile delinquency proceedings as a result of the procedures discussed above.

In other words, a juvenile charged with child molestation that does not have a serious criminal record is generally not subject to prosecution as an adult.

“Sexting” and Child Pornography (Penal Code section 311)

“Sexting” is becoming a disturbingly popular sexual activity among teenagers and younger children. Minors use cellphones and computers to send, receive and distribute naked, sexually provocative, or sexually explicit pictures and videos of themselves via text, email and social media. This is known as “sexting.”

Sexting violates California’s child pornography crimes under Penal Code sections 311 through 311.12. Sexting images can end up on social media and networking websites indefinitely, permitting continuous exploitation of the victim each and every time they are viewed.

Prosecutors have become increasingly aggressive in charging youths for producing, distributing and/or possessing child pornography due to “sexting.

While a younger minor who sexts with other minors is likely to face juvenile delinquency proceedings, older teenagers may find themselves being prosecuted as adults.

Child on Child Sexual Abuse – Sentencing and Punishment

A minor who has been adjudicated as delinquent in the juvenile justice system is subject to a broad range of treatment intended to rehabilitate a youthful offender. “Sentencing” upon a finding of “guilt” is determined at a disposition hearing following the minor’s adjudication.

A minor tried and convicted in a criminal court is subject to the same sentencing and punishment authorized for an adult.

Consequences of Child on Child Sexual  Abuse Adjudication

During juvenile delinquency hearings, the court will consider the age of the minor, the severity of the crime, and whether the minor has a prior criminal record. The court’s authority over juvenile delinquency matters is found within the California Welfare & Institutions Code section 600 et seq.

If a minor is adjudicated delinquent, the judge will hold a disposition hearing to determine the delinquent minor’s treatment or “sentence.” A judge may order the following at a disposition hearing:

• The minor may live with his or her parent(s) or other guardian(s) under court supervision;

• The minor may be placed on probation. He or she may have to live with a relative, in foster care or in a group home, or in an institution;
• The minor may be placed on probation and sent to a probation camp or ranch; or
• The minor may be committed to the California Department of Corrections and Rehabilitation (CDCR), Division of Juvenile Justice (DJJ) up to the age of 25, depending on the offense committed.

Consequences of a Child on Child Sexual Abuse if Convicted as an Adult

A minor tried in a criminal court and convicted of a felony sex offense faces the same sentencing and punishment authorized for an adult defendant.

A minor sentenced to adult prison remains within DJJ custody until he or she is at least 16 years old. A judge may send a minor at least 16 years old to adult prison. If the minor’s sentence ends prior to his or her 21^st birthday, the judge maintains discretion to keep the child within DJJ jurisdiction.

If a minor’s conviction results in a sentence that will last beyond his or her 21^st birthday, the minor will be transferred to an adult prison facility upon turning 18.

Sentencing and Punishment for Felony Sex Offenses

A minor convicted as an adult for most unforced felony sex offenses committed on another minor faces either:

• Three to five years of formal, supervised probation;

• 16 months, or two or three years in prison whenever probation is not granted; and/or

• A fine of up to $10,000.

However, forcible sex offenses (in other words “rape” crimes) are considered “strikes” under California’s Three Strikes law (Penal Code section 667.5 (c)) and are subject to more severe punishment because an act of violence was involved.

A minor convicted as an adult of a violent felony sex offense is typically ineligible for probation and is subject to a prison term as follows:

Rape (PC 261), Spousal Rape (PC 262) and Forcible Sodomy (PC 286)

• Victim under 14 years old: 9, 11 or 13 years in prison;

• Victim 14 to 17 years old: 7, 9, or 11 years in prison;

• Acting in concert with another person (“gang rape”): up to 14 years in prison.

Forcible Oral Copulation (PC 288a)

• Victim under 14 years old : 8, 10 or 12 years in prison;

• Victim 14 to 17 years old: 6, 8 or 10 years in prison;

• Acting in concert with another person (“gang rape”): up to 14 years in prison.

Forcible Sexual Penetration Using a Foreign Object (PC 289)

• Victim under 14 years old : 8, 10 or 12 years in prison;

• Victim 14 to 17 years old: 6, 8 or 10 years in prison;

Forcible Lewd and Lascivious Acts on a Child (PC 288 (b))

• Victim under 14 years old: 5, 8 or 10 years in prison.

Lewd and Lascivious Act on a Child (PC 288 (a))

• Victim under 14 years old: 3, 6, or 8 years in prison.

A fine of up to $10,000 may be imposed in addition to or instead of the terms of imprisonment listed above.

A felony strike conviction means a prisoner must serve a minimum of 85% of his or her sentence before becoming eligible for parole.

Prior felony and strike convictions are also used to substantially enhance or increase a prison term should a person be convicted of committing a felony and sentenced to prison in the future.

Juvenile Registration as a Sex Offender

A juvenile convicted as an adult of specified sex offenses listed under Penal Code section 290 (c) of the California Sex Offender Registration Act is subject to sex offender registration regardless of whether he or she is sentenced to probation, jail or prison.

A juvenile who is adjudicated and serves a probationary period absent a committed to CDCR custody is not required to register as a sex offender for any California sex offense. A juvenile adjudicated of certain offenses in the juvenile court system is subject to sex offender registration upon the minor’s release from California Department of Corrections custody, following any term of commitment, whether served in a Juvenile Justice Facility or an adult prison (Penal Code section 290.008).

Generally, adjudicated offenses requiring juvenile sex offender registration are exempt from public disclosure on California’s sex offender registry website known as “Megan’s Law.”

However, local law enforcement agencies maintain discretion to notify the public about juvenile registrants posing a high risk to the public “through whatever means the entity deems appropriate” (Penal Code section 290.45).

Child on Child Sexual Abuse – FAQ’s

1.      What does juvenile adjudication mean?

Adjudication within the juvenile justice system means a minor is found to be delinquent, rather than “guilty” of committing a crime. Only a minor may be adjudicated. A juvenile adjudication is subject to a disposition hearing at which a judge renders a “sentence” intended to rehabilitate a youthful offender, up to and including custody in a juvenile facility.

2.      Can my 12-year-old cousin be charged with molesting my 8-year old brother?

No. California does not initiate criminal proceedings against children under the age of 14. However, your cousin may face other consequences, such as being referred for counseling or placement in a group home as a ward of the court.

3.      Can a minor be tried as an adult for committing a sex offense on another minor?

Yes, depending on the severity of the crime and the minor offender’s record. A prosecutor has discretion to file charges directly against a minor in adult court in very serious cases. In the most serious criminal cases under extraordinary circumstances, California law requires a minor over the age of 14 to stand trial as an adult.

4.      If a minor is charged as an adult, what can happen?

If a minor has his or her case referred for prosecution in a traditional criminal court, he or she has the same rights as an adult defendant, including the right to a jury trial. However, a minor convicted of an adult crime faces the same sentencing and punishment as an adult would face.

 5.      Can a 16-year old boy be sent to prison for raping a 15-year old girl?

Yes. If a minor is prosecuted for rape as an adult and either pleads guilty or is convicted by a jury, he faces a prison sentence. The maximum penalty for raping a minor over the age of 14 is 11 years.

6.      Will my child have to register as a sex offender for child on child sexual abuse?

An adjudicated delinquent minor who is committed into the custody of the California Department of Corrections, Division of Juvenile Justice must register as a sex offender for committing specified sex offenses.

A minor convicted as an adult for committing a sex offense is also subject to lifetime sex offender registration whether or not he or she is sent to prison.

7. Can a child be charged with molestation of another child?

Yes. In the State of California, a child can be charged with molestation of another child and other forms of sexual assault, including rape, even if the alleged victim is another child. However, the consequences that a child might face upon being convicted of a sex crime will vary based on the child’s age, the severity of the crime, and other factors related to the case.

Contact Wallin & Klarich Today if Your Child Has Been Charged with a Sex Offense

If you or a loved one has been charged with child on child sexual abuse in California, it is vital that you speak to an experienced juvenile defense attorney at Wallin & Klarich today.

Child on child sexual abuse cases require discrete and diligent handling to make certain the best interests of the child are protected. If the charged offense involved voluntary sexual activity, the matter will be able to be resolved in the juvenile court system, avoiding traditional adult punishment.

If a forcible sex act is being alleged, you and your family will need an experienced criminal defense attorney throughout this difficult ordeal. Our attorneys at Wallin & Klarich have over 30 years of experience successfully defending juvenile clients facing prosecution as an adult for a serious sex offense.

Hiring an attorney from Wallin & Klarich experienced in sex crimes defense is the best chance for a minor to avoid the serious consequences of a felony sex offense conviction, including a lengthy prison sentence, heavy fines, and worst of all: lifetime registration as a sex offender.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich will fight to get you and your family the best result possible in a child’s case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.