Sex with a Child 10 Years of Age or Younger (California Penal Code Section 288.7)

An adult who has sex with a child who is 10 years of age or younger commits one of the most severely punished crimes in California. The statute that governs this crime, California Penal Code Section 288, makes the commission of any of the following acts a crime:

• Penal Code Section 288.7(a): It is a felony for any person who is 18 years old or older to engage in sexual intercourse or sodomy with a child who is 10 years old or younger.

• Penal Code Section 288.7(b): It is a felony for any person who is 18 years old or older to engage in oral copulation or sexual penetration, as defined in Penal Code Section 289, with a child who is 10 years old or younger.

Prosecution for Violating Penal Code Section 288.7

In order for a person to be convicted of violating Penal Code 288.7, the prosecution must prove the following elements:

1. The defendant engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration with the child;

2. When the defendant did so, the child was 10 years of age or younger;

3. At the time of the act, the defendant was at least 18 years old.¹

It is important to note that sex with a child 10 years of age or younger is what is known as a “strict liability” crime, meaning that the prosecution does not need to prove the defendant had malicious intent when the act was performed. Proving that the defendant committed the act is sufficient to secure a conviction.

Also, it is important to know that the crime can be committed either by an adult performing one of the prohibited acts on a child, or causing the child to perform one of the prohibited acts on the adult, another person, or on him or herself.

Key Definitions Within the Law

“Sexual Intercourse” – As defined in law, sexual intercourse is the penetration of the vagina by the penis, however slight the penetration is. Ejaculation is not required to meet the definition of sexual intercourse.²

“Sodomy” – Similar to sexual intercourse, sodomy is defined under California Penal Code Section 286(a) as “sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” Again, like sexual intercourse, ejaculation is not an element of the definition of sodomy.³

“Oral Copulation” – Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

“Sexual Penetration” – Sexual penetration is the act of penetration, however slight, of the genital or anal opening of the child by any foreign object, substance, instrument, device, or any unknown object for the purpose of sexual abuse, arousal, or gratification.⁴ The definition also includes causing the child to sexually penetrate the genital or anal opening of the defendant or another person, or to cause the child to sexually penetrate his or her own genital or anal opening.⁵

“Sexual Abuse” – Any penetration performed for the purpose of causing pain, injury, or discomfort.⁶

“Foreign Object, Substance, Instrument, or Device” – This includes any object or part of the body except for a sexual organ.⁷

“Unknown Object” – This can include any of the above, or a penis, if the identity of the penetrating object cannot be established.⁸

Punishments for Violating Penal Code Section 288.7

Convictions for committing a sexual act with a child who is 10 years old or younger are among the harshest of any sex crime in California.

• Violations of Penal Code Section 288.7(a) are punishable by imprisonment in a state prison for a term of 25 years to life.

• Violations of Penal Code Section 288.7(b) are punishable by imprisonment in a state prison for a term of 15 years to life.

When a punishment includes a set number of years and the possibility of life in prison, the person must serve the minimum number of years specified, and then can only be released by a positive determination in a California Parole Board Hearing (also known as a “lifer” hearing). Thus, if the person is found guilty of violating Penal Code Section 288.7(a), he or she must serve at minimum 25 years, and then be found suitable for release by the Parole Board.

In addition to these punishments, a person convicted of violating either 288.7(a) or 288.7(b) must register as a sex offender pursuant to California Penal Code Section 290. Sex offenders must renew their registration every year for the rest of their life. Failing to do so can result in a new prison sentence.

Police Techniques for Investigating Violations of Penal Code Section 288.7

Though there are several techniques the police might employ in their investigations, three common techniques have emerged as the most successful in trapping potential suspects in sex crimes with children. Any of these techniques can lead to a suspect confessing to the crime, even if they did not actually commit it.

1. Out of Custody Interrogations

An “out of custody” interrogation is the interrogation of a person who has not been arrested for a crime. The interrogation involves the police claiming to want the suspect’s versions of the events. The police will call a suspect on the phone and tell him or her that an accusation of lewd conduct by force or fear has been made, and the suspect is invited to come to the police station voluntarily to give their statement. The detective will claim to not have made a decision yet, and that in the interests of fairness, he or she just wants to hear all sides of the story. The detective and the suspect agree on a meeting time, and the suspect comes in, advised that he or she is free to leave at any time. The police thank the suspect for coming in, offers him or her a drink of water or a soda or a cup of coffee.

Importantly, the suspect is not entitled to Miranda warnings concerning their rights because he or she is not “in custody.” The detective, well-trained in interrogation techniques, will pretend to be on the side of the suspect, and attempt to get the suspect to confess, even if the suspect did not actually commit the crime.

2. The Lie Detector Test

Another police investigation method is to convince the suspect to sit for a polygraph test, commonly known as a lie-detector test. Though the results of the test are generally not admissible (unless both the prosecution and defense agree), the statements that the suspect makes during the examination are admissible.

There are three phases of the test, any of which poses the risk of making a statement that could be used against the suspect in court. First, there is the “pre-polygraph” interview, where the police will ask a series of questions in order for the police to ask a suspect questions that can incriminate him or herself for the crime. The second phase is the test itself, where more questions are asked that could provide the police with the confession they seek. Finally, there is the post-testing phase, where the suspect will have the natural tendency to stay until the results are given. The police may tell the suspect that they failed the test, and that it would be in his or her best interest to confess so that the report is not used to give the suspect a harsher punishment.

3. The Pretext Call

The final technique is known as the “pretext” phone call. The police will have either the child or a parent of the child contact the suspect on the phone. The police monitor and record the call, and the caller is asked to accuse the suspect of the crime while on the phone, and ask the suspect why he or she did the crime. The suspect, hearing the emotionally charged accusations and statements made by the callers, and in an effort to justify his or her actions, may inadvertently make incriminating statements, or may apologize for the harm done to the child. Any of these statements can be used against the suspect in a criminal case.

Related Crimes

Violations of Penal Code 288.7 are often accompanied by charges for other crimes stemming from the incident. Here are a few of the possible charges a person might face in addition to sexual acts with a child who is 10 years old or younger:

• Kidnapping (Penal Code 207)

• Sending Harmful Matter to Seduce a Minor (Penal Code 288.2)

• Contacting a Minor to Commit a Felony (Penal Code 288.3)

• Arranging a Meeting with a Child for Lewd Purposes (Penal Code 288.4)

• Continuous Sexual Abuse of a Child (Penal Code 288.5)

• Child Pornography (Penal Code 311)

• Annoying or Molesting a Child Under 18 (Penal Code 647.6)

Possible Defenses to a Charge Under 288.7

Like any other crime, a person accused of violating Penal Code Section 288.7 is entitled to a defense. While the crime requires no proof of a criminal mental state, there are still several defenses available to a person charged with this crime:

• The accuser is lying or mistaken. It is not uncommon for a child to make a false accusation of a crime. Children may accuse an adult of improper behavior because the adult punished the child for bad behavior, or did not allow the child to do something he or she wanted to do. A child might also confuse a legal act by the adult with one that is illegal.

• Perpetrator substitution. Another possible defense is that the child did suffer a sexual act, but is mistaken as to the identity of the person who did it. For example, the act could have taken place in a darkened room. The child, uncertain of who committed the act, blames the nearest adult who could have done it.

• Coaching the accuser. It is also possible that a third party is manipulating the child into making an allegation of sexual misconduct. In effect, the child is “coached” by this person in an effort to get the accused adult into serious trouble. For example, the “coaching” defense was used successfully in the McMartin Preschool Case, where jurors believed that children who accused Raymond Buckey and Peggy McMartin Buckey of improper sexual conduct had been coached into making those accusations.

Frequently Asked Questions

1. If there is no physical evidence that sexual acts occurred, 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 PC 288.7 if I am a family member of the alleged victim?

Yes, you can be charged with this crime 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.⁹

3. I am charged with having sex with a child 10 years or younger. 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.

6. Can I be convicted of this crime even if the sex was consensual?

Yes, no minor under the age of 18 has legal right to consent to sexual activity in California.

7. What should I do if I have been arrested for this crime?

If you have been arrested for sexual activity with a child 10 years or younger, you need to contact an experienced attorney immediately. The District Attorney will prosecute you aggressively. Sex crimes against minors are taken very seriously in California and you could face severe penalties. Even if charges have not yet been filed, your attorney will be able to monitor your case and possibly sway prosecutors to lessen the charges being filed against you or even have the case dismissed prior to charges being filed. Contact an experienced attorney immediately.

Call Wallin & Klarich Today

If you have been accused of performing a sex act on a child who is 10 years old or younger, you face a serious accusation that is going to require the help of an experienced and aggressive attorney. That is why you should contact the experienced sex crimes defense attorneys at Wallin & Klarich right away.

With over 30 years of experience, our attorneys at Wallin & Klarich have the skills and knowledge to successfully defend you. We are committed to providing you with expert legal representation to help you overcome this difficult situation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with expert legal advice. We will employ every available strategy to help you get the best result possible in your case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no obligation telephone consultation. We will be there for you when you call.

^{1. CALCRIM 1127: Engaging in Sexual Intercourse or Sodomy With Child 10 Years of Age or Younger (Pen. Code, § 288.7(a)).↩}

^{2. Id↩}

^{3. Id↩}

^{4. California Penal Code Section 289(l).↩}

^{5. CALCRIM 1128: Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or Younger (Pen. Code, § 288.7(b)).↩}

^{6. Id↩}

^{7. Id↩}

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^{9. California Sex Offender Management Board – “A Better Path to Community Safety” 2014↩}