California Penal Code 288.5 – Continuous Sexual Abuse of a Child (PC 288.5)
Continuous sexual abuse of a minor is considered a strike under California’s three strikes law. This crime is a felony that carries severe penalties, including years of incarceration in a state prison. 1 Furthermore, if you are convicted of this crime, the California Department of Justice will require you to publicly register as a sex offender for the remainder of your life. This will restrict your options for finding housing and employment.
Continuous sexual abuse of a minor (PC 288.5) is a deportable offense, meaning that, if you are not a U.S. citizen, you will be denied citizenship and may be deported as a result of your conviction.
California Penal Code 288.5
Continuous sexual abuse of a minor is defined by California Penal Code Section 288.5(a) as engaging in three or more acts of substantial sexual conduct with a child under the age of 14 at the time of the offense, by a person who either resides in the same house with the minor child or has recurring access to the child. The conduct must take place within a period of time of not less than three months in length. 2
“Substantial sexual conduct” means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child’s or perpetrator’s vagina or rectum by the other person’s penis or any foreign object.
“Oral copulation” is any contact between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.
“Lewd and lascivious conduct” is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or child.
For lewd and lascivious conduct to have occurred, it is not required that there have been contact with the child’s bare skin or private parts. In order to satisfy the definition of lewd and lascivious conduct, the perpetrator may touch any part of the child’s body or the clothes that the child is wearing. Lewd and lascivious conduct includes causing a child to touch his or her own body or someone else’s body for the purpose of sexual gratification.
A defendant may not be charged with other acts involving the same victim in the same proceeding unless the other charged offenses occurred outside the stated time period, or the other offense is charged in the alternative, i.e. as an alternate charge to continuous sexual abuse of a minor.8 To clarify, if a defendant was charged with two counts of continuous sexual abuse of a minor, there must have been at least two time periods of at least three months involving three or more acts of molestation. If more than one victim was involved in the acts, a separate count may be charged for each victim.
In order for you to be convicted of continuous sexual abuse of a minor under PC 288.5, the prosecution must prove all of the following beyond a reasonable doubt:
- You lived in the same home with or had recurring access to a minor child;
- You engaged in three or more acts of substantial sexual conduct or lewd and lascivious conduct with the child;
- Three or more months passed between the first and last acts; and
- The child was under the age of 14 years at the time of the acts. 3
As to lewd and lascivious conduct, it is not required that the acts actually aroused, appealed to, or gratified the lust, passions, or sexual desires of the perpetrator or child.
If you are convicted of continuous sexual abuse of a minor under PC 288.5, you will be required to serve 6, 12, or 16 years in state prison. You will be required to register as a sex offender in California for the rest of your life for as long as you remain a resident in this state. Certain offenders can petition to be excluded from the California Megan’s Law website, but must still register as sex offenders with local law enforcement agencies.
A person convicted of continuous sexual abuse of a minor may also be sued by the alleged victim for monetary damages in civil court.
There are a number of ways that a skilled attorney can successfully defend you against these charges. Defenses to the crime of continuous sexual abuse of a minor include:
- false accusations,
- mental disability,
- insanity, and
- involuntary intoxication.
1. If there is no physical evidence that the child suffered continuous sexual abuse, can I still be convicted?
Yes, you can be convicted solely on the testimony, or words, of the alleged victim and/or other witnesses, however, a skilled attorney may be able to prove that these allegations are false.
2. Can I be charged with continuous sexual abuse of a minor if I am a family member of the alleged victim?
Yes, you can be charged with continual sexual abuse of a minor whether the child victim is in your family or not. In fact, 93% of sex crimes against children are committed by persons known to the victim, usually an acquaintance or family member. 4
3. I am charged with continuous sexual abuse of a minor. Will I be allowed to have contact with the child while the case is still pending?
No, the judge typically will issue a criminal protective order (CPO) against you. This prohibits you from having contact with the alleged victim.
4. If I am the parent of the child I was accused of abusing, what happens to my right to custody?
The other parent of your child will likely ask the family law court to terminate your custody and/or visitation rights while the criminal case is pending. During the process of the criminal case there will likely be a criminal protective order issued stating that you can have no contact with your child during the case. After the criminal case is over and the criminal protective order is lifted then the family law court will decide what custody and visitation rights you will have with your child.
5. Can I be deported for continuous sexual abuse of a minor?
Yes, you should talk to an experienced criminal defense attorney who is experienced in representing immigrants accused of serious felonies right away.
Wallin & Klarich Can Help
If you or a loved one has been accused of the continuous sexual abuse of a minor under PC 288.5, you should contact the experienced attorneys at Wallin & Klarich as soon as possible. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending clients facing the serious consequences of child abuse such as jail time and or fines.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our criminal defense attorneys at Wallin & Klarich will protect your constitutional rights and make certain you are treated fairly through every step of your criminal proceedings. We will aggressively pursue every defense available to help you win your case.
Call us today at (877) 4-NO JAIL (877-466-5245) for a free telephone consultation. We will get through this together.
1. [California Penal Code Section 288.5(a)]↩
3. [CalCrim Jury Instructions No. 1120]↩
4. [California Sex Offender Management Board – “A Better Path to Community Safety” 2014]↩