Continuous Sexual Abuse of a Minor
PC 288.5(a) Law & Defense
Information on the crime of Continuous Sexual Abuse of a Child is found at California penal code section 288.5(a). In short, continuous sexual abuse of a minor means to molest a child, under the age of 14, at least three times over the course of 3 months or more. To molest a child means to touch a child with sexual intent to arouse the child or the person touching the child (defendant).
PC 288.5(a) Law
PC 288.5(a): Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of fourteen at the time of the commission of the offense, or three or more acts of lewd or lascivious conduct with a child under the age of fourteen years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child (Abbrev.).
Substantial Sexual Conduct: The term Sexual sexual conduct in PC 288.5(a) means penetration of the vagina or rectum of either the victim, or the offender, by the penis of the other person, or by any foreign object, oral copulation, or masturbation of either the victim or the offender (Penal Code 1203.066). Masturbation under substantial sexual conduct law does not require anything more than touching of the vagina. It does not require actual stimulation.
Lewd and lascivious: The term lewd and lascivious conduct in PC 288.5(a) law means any willful touching of a child accomplished with the intent to sexually arouse the defendant or the child. The touching does not need to be skin to skin or even against the private parts of a child. Lewd and lascivious conduct also includes causing a child to touch the defendant's body if the defendant has the requisite intent to cause sexual arousal of either the defendant or the victim (Penal code 288(a) Abbrev.)).
Thus, in order to find the defendant guilty of the crime of continuous sexual abuse of a child pursuant to PC 288.5 the district attorney will need to prove:
The defendant either lived with the child, or had recurring access to the child
The defendant engaged in three or more acts of substantial sexual conduct or lewd and lascivious acts with the child (See above for definitions)
Three or more months passed between the first and last acts, and
The child was under the age of fourteen years old at the time of the acts
Note: Actual arousal of the defendant or the child is not required to prove the defendant is guilty of PC 288.5(a). The willful touching, coupled with the requisite intent to sexually arouse the defendant or the child, is sufficient.
Penalty for PC 288.5(a)
PC 288.5 is classified as a felony. If found guilty, the defendant could face up to sixteen (16) years in prison (maximum). If the defendant is sentenced to prison, the sentence will be served at eighty-five percent (85%), which means that even if the defendant earns good time behavior credits the defendant will still be required to serve at least eighty-five percent (85%) of his or her prison sentence.
Note: A low-term sentence for continuous sexual abuse of a child is six (6) years and a mid-term sentence is twelve (12) years (PC 288.5(a)).
Probation Sentence: A probation sentence is a period supervision in lieu of prison. A probation sentence may be possible after a conviction for PC 288.5(a) only in special circumstances. What constitutes a special circumstance is judged on a cases by case basis, but is would likely include a situation where the victim does not want the defendant to serve a prison sentence (usually family), the defendant has no criminal history, the facts of the case tend to show great mitigation in terms of the severity of the defendant's conduct (low mental acuity or substance abuse involved), and the harm to the victim is low (in mental and/or physical harm). In any event, if the allegation include a substantial sexual conduct enhancement (PC 1203.066), the defendant may not be granted probation.
Whether or not the judge sentences the defendant to probation without prison, a low-term sentence, a mid-term sentence, or the maximum sentence of sixteen (16) years depends largely on the facts and circumstances of the case and the defendant's criminal history (Cal Rules of Court 4.421 & 4.423).
PC 1170(h): PC 288.5(a) is not subject to PC 1170(h) sentencing. This means that if the defendant is not granted probation after a conviction for PC 288.5(a), the defendant must serve his or her sentence in prison (as opposed to a local county jail), and no part of the defendant prison sentence may be split or suspended.
Sex offender registration: If found guilty of PC 288.5(a), the defendant will be ordered to register as a sex offender. Sex offender registration requires the defendant to register with local law enforcement every year and within five (5) days of the defendant’s birthday every year. Sex offenders have major restrictions on where they can live and special rules apply to transients and violent sex offenders (PC 290(b), 290.001 & 290.011).
Three Strikes Crimes: PC 288.5(a), and the underlying crime of PC 288(a), are considered strike offenses in California as those crimes are defined as violent and serious offenses under California law. Therefore, if the defendant is found guilty of PC 288.5(a), or any of the underlying crimes of PC 288(a), he or she will suffer a strike conviction and incur greater penalties for subsequent conviction of any felony (PC 1192.7, 667.5).
Professional License: If found guilty of PC 288.5(a), the defendant will very likely suffer negative consequences with his or her professional or occupational license, including revocation, suspension, and other discipline. This applies to all Bar, Board, and Commission members, including doctors, lawyers, nurses, counselors, teachers, dentist, therapist, cosmetologist, and more (CA Code of Regulations Title 16).
Immigration Issues: Continuous sexual abuse of a child is considered a crime involving moral turpitude. If the defendant serves more than a year in prison the crime will also be considered an aggravated felony. Any non United States citizen, including permanent residents, that are convicted of PC 288.5(a), may be deported from the United States and denied reentry after serving his or her prison sentence (8 United States).
Penalty Fines & Restitution: If convicted of PC 288.5(a), the defendant may face up to a ten thousand dollar ($10,000) fine. In addition, if found guilty of PC 288.5(a), the defendant may be ordered to reimburse the county for booking fees and other court security fees. Restitution to the victim will also be ordered if the victim proves that he or she had any doctor or therapist bills associated with the crime.
Restraining Orders: If found guilty of continuous sexual abuse of a child (PC 288.5(a)), the defendant will be ordered to stay away from all named victims and possibly the victim's family. Defendants serving time in prison for PC 288.5(a) convictions may also be denied visits from victims while in prison, even if the victim is the defendant's family member.
Child Protective Service (CPS) Issues: When a person is accused of PC 288.5(a), or other sexual or child assault type crime, he or she may have his or her child or children removed from the home during the investigation of the criminal proceedings. CPS may remove any remaining children from the defendant's home and defendant name may be listed on the Child Abuse Central Index (CACI).
Defenses to PC 288.5(a)
There are many defenses that might apply to a PC 288.5(a) case. Every case is different and so every defense is different. However, typical defenses to a PC 288.5 charge include: Insufficient evidence (Not enough evidence to prove an element of the charge, including sexual intent [accidental touching], not enough evidence to prove that at least three acts occurred over a period of time greater than three months, or not enough evidence to prove the age of the victim). Other defenses include: Mistake of fact, intoxication, insanity, coerced confessions, statute of limitations, and more.
Demurrer as a Defense: A demurrer is an objection to the validity of the complaint itself. A defendant who demurrers does not enter a plea unless, and until, the judge does not grant the defendant's demurrer.
For purposes of PC 288.5(a) defense, a demurrer might be available if the district attorney charges the defendant with a violation of PC 288.5(a), along with any other violation of PC 288 (lewd and lascivious act on a minor), or any violation of PC 1203.066(b), substantial sexual contact. This is because subsection (c), of penal code section 288.5, specifically forbids all of the following:
1) Multiple counts of continuous sexual abuse of a child, or
2) One count of continuous sexual abuse of a child along with and other PC 288 allegation, or
3) One or more counts of continuous sexual abuse of a minor along with a violation of PC 1203.066, substantial sexual contact of a minor.
Note: While a demurrer to the complaint is not a true defense in the sense that pc 288.5(a) allegation is dismissed, it is a defense to the denial of a probation sentence, which is not allowed when the complaint alleges both PC 288.5(a) and PC 1203.066, substantial sexual contact. Also, according to PC 288.5(c), a defendant may be charged in the alternative to PC 288.5(a) crimes. This means that the prosecutor may charge separate counts of PC 288(a), as opposed to one count of PC 288.5(a).
Important: If you have been accused of any sex crime you should not talk to the police or anyone else before talking to a qualified sex crimes attorney. Time is not on your side and your attorney should start your defense at the earliest possible time.
If you or a loved one is charged with the crime of continuous sexual abuse of a child, or PC 288.5(a), contact our sex crimes lawyers today for a free consultation. Our sex crimes defense lawyers are 100% dedicated to criminal defense. We have successfully defended hundreds of sex crimes, including charges of continuous sexual abuse of a child under PC 288.5(a). Call today!
Quick Legal Reference
Crime: Continuous Sexual Abuse of a Minor (Lewd Acts)
Code: PC 288.5(a) (CalCrim No. 1120)
Wobbler: No. PC 288.5(a) is not a wobbler. This means that PC 288.5(a) is only charged as a felony.
Incarceration: Felony PC 288.5(a) prison sentence range: 6, 12 or 16 years prison (if probation not granted).
Probation: Probation is not common but may be available in special PC 288.5(a) cases (assuming additional crimes or enhancements that bar probation sentences are not present, such as PC 1203.066 [substantial sexual contact]). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 288.5(a) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a felony conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 288.5(a) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7), and a Violent (PC 667.5(c). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 15% good conduct credits available.
CIMT: PC 288.5(a) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: PC 288.5(a) convictions bar defendant from owning or possessing a firearm.
Registration: If convicted of PC 288.5(a) defendant is required to register as a sex offender with law enforcement.
Bail: $350,000 (San Bernardino County)
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Penal Code Section 288.5
288.5(a): Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
PC 288.5(b): To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.
PC 288.5(c): No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.