Review of the Crime of PC 288.5 Sexual Abuse of a Child
California Penal Code 288.5 PC describes the crime of continuous sexual abuse of a child as engaging in three or more acts of substantial sexual conduct with a child under 14 years, that occurs over a period of three months or more.
Further, the illegal conduct must occur from someone who either resides in the same house or has regular access to the child. This felony sex crime is punishable by up to 16 years in a state prison.
The closely related Penal Code 288 PC makes it a crime to commit a single lewd or lascivious act with a child under age fourteen, punishable by up to ten years of imprisonment.
But a separate Penal Code 288.5 PC statute makes it a more serious crime for a person with access to continuously sexually abuse a child under age fourteen. The charges grow more serious with more alleged acts.
Further, a PC 288.5 conviction will result in a mandatory requirement to register as a sex offender under Penal Code 290 PC.
Our Los Angeles criminal defense attorneys are providing a detailed review below.
What Is the Definition of a Penal Code 288.5 Charge?
California Penal Code 288.5 PC defines the crime of the continuous sexual abuse of a minor as:
- “Any person who either resides in the same home with the minor child or has recurring access to the child, and who over a period of time, 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 the age of 14 years at the time of the commission of the offense.”
In order for the prosecutor to obtain a conviction for continuous sexual abuse of a minor under PC 288.5, the prosecution has to prove all the elements of the crime (CALCRIM 1120) beyond a reasonable doubt. Notice the crime's:
- (a) duration requirement over at least three months,
- (b) acts requirement of substantial sexual conduct or lewd or lascivious conduct,
- (c) number of acts requirement three, and
- (d) child under 14 years old.
These strict elements open the door to a strategic defense approach, as explained more below.
“Substantial sexual conduct” means oral copulation or masturbation of the minor or accused, or penetration of the minor's vagina or rectum by the other person's penis or a foreign object.
“Oral copulation” means contact between the someone's mouth the sexual organ or anus of another person. Actual penetration of an imitate part is not required.
Lewd and lascivious conduct
“Lewd and lascivious conduct” means any willful touching of a minor accomplished with intent to sexually arouse the child or accused.
For lewd and lascivious conduct to occur, it's not required to have contact with the child's bare skin or their private parts, rather:
- the accused may touch any part of the child's body, or
- the clothes that the child is wearing, or
- causing a child to touch their own body, or
- someone else's body for the purpose of sexual gratification.
Other related California crimes include Penal Code 288b1 PC lewd acts with a minor by force or fear, and Penal Code 288.7 PC sexual acts with a minor under 10 years old.
What Are the Penalties for Penal Code 288.5?
As to the penalty, a conviction for violating Penal Code 288.5 is a felony crime punishable by:
- a prison term of six, twelve, or sixteen years,
- a strike under California's three strikes law.
A defendant convicted under Penal Code Section 288.5 would also face registration as a sex offender under Penal Code 290 PC.
Certain offenders can petition for exclusion from the California Megan's Law website, but must still register as sex offenders with local law enforcement agencies.
California appellate case law holds that child sexual abuse is also a deportable crime of moral turpitude for a non-citizen defendant.
Constitutional rights – Penal Code 288.5(b)
California Penal Code 288.5(b) expressly permits a jury to disagree on which acts constitute the required three, if the jury unanimously agrees that at least three such acts occurred.
The Supreme Court recently ruled in Ramos v Louisiana that under the Sixth and Fourteenth Amendments, states must require juror unanimity to convict of serious criminal charges.
Our criminal lawyers have the knowledge and skill to raise constitutional challenges to statutes that would permit non-unanimous convictions on any element of a charge, such as the three acts qualifying for conviction of continuous sexual abuse of a minor.
Penal Code 288.5(c)
Similarly, Penal Code Section 288.5(c) prohibits the court from convicting the defendant of continuous abuse and separately convicting of any qualifying act occurring within the same period.
The statute permits the prosecution to charge both the continuous abuse and one or more acts only in the alternative, meaning the court may not convict on both charges.
Convicting twice for the same crime would violate the Fifth and Fourteenth Amendments' double-jeopardy clause.
Defenses for PC 288.5 Continuous Sexual Abuse Charges
Our premier Los Angeles criminal lawyers can successfully defend against continuous sexual abuse of a child charges in other ways beyond constitutional challenges. Some common defenses include:
- no recurring access,
- no sexual conduct,
- false allegation.
Because Penal Code 288.5 applies by its express terms only to certain persons residing in the same home or having recurring access, the prosecution may not be able to establish that the defendant is within that class.
The crime also requires proof of three or more acts of substantial sexual conduct or lewd or lascivious conduct when the prosecution may not be able to prove that many acts or that the acts qualify within the definitions of those terms.
Sex charges can be hard to prove, given the diametrically opposed testimony on which the charges typically rely.
We have the investigation and cross-examination skills to undermine testimony lacking in credibility.
Further, we can also draft, file, and argue bail reduction motion to ensure that the defendant has the best opportunity to assist with the defense.
We know know how to help clients charged with criminal sexual misconduct develop a reliable legal strategy on which to defend the charges.
Best Criminal Defense for California Sex Charges
As you can see, Penal Code 288.5 criminal sexual misconduct charges carry severe sanctions and penalties. The question is what to do about it.
Our skilled Los Angeles criminal attorneys offer aggressive defense that can defeat groundless or exaggerated charges.
We have the nationwide experience and trial victories to prove our ability and commitment to defend the most serious charges.
While any charge alleging child sexual abuse is serious, a charge alleging continuous abuse of a child requires the best criminal defense you can find.
Eisner Gorin LLP is a nationally recognized criminal law firm that serves people in all Southern California courts, including Los Angeles County, Orange County, Santa Barbara County, Ventura County, Riverside, and San Bernardino.
Our law firm is located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067.
Our main office is in the San Fernando Valley at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact us for a free immediate consultation at (877) 781-1570.