Continuous Sexual Abuse of a Child
PC 288.5 Law & Defense
Information on the crime of Continuous Sexual Abuse of a Child is found at California penal code section 288.5
PC 288.5 Continuous Sexual Abuse of a Child Law
PC 288.5(a) Law: 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.
Substantial sexual conduct means penetration of the vagina or rectum or either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender (Penal Code 1203.066).
Lewd and lascivious conduct 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 own body if the defendant has the requisite intent to cause sexual arousal of either the defendant or the victim (Penal code 288).
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. The willful touching with the requisite intent to sexually arouse the defendant or the child is sufficient.
Penalty, Sentence, & Punishment for PC 288.5 Crimes
PC 288.5 is classified as a felony. If found guilty, the defendant could face up to sixteen (16) years in prison. 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.
Probation or suspended prison sentence, without serving an actual in-custody prison sentence, may be possible in some PC 288.5 crimes where there is no substantial sexual conduct on the underlying lewd and lascivious acts (PC 1203.066, and 1170(h)).
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)).
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).
Collateral punishment for PC 288.5
Sex offender registration: If found guilty of PC 288.5, the defendant will be ordered to register as a sex offender for the remainder of his or her life. Sex offender registration requires the defendant to register with local law enforcement every year and within five (5) days of the defendants 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 and the underlying PC 288 crimes are considered violent and serious offenses as those terms are defined in California law and Three Strikes Sentencing Law. Therefore, if the defendant is found guilty of PC 288.5 or any of the underlying crimes of PC 288, he or she will suffer greater penalties for subsequent conviction of any felony (PC 1192.7, 667.5).
Professional license consequences: If found guilty of PC 288.5, 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 consequences: Continuous sexual abuse of a child is considered a moral turpitude crime and a crime of violence. 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, will be deported from the United States and denied reentry after serving his or her sentence (8 United States Code)
Penalty Fines & Restitution: If convicted of PC 288.5, the defendant may face up to a ten thousand dollar ($10,000) fine. In addition, if found guilty of PC 288.5, 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), the defendant will be ordered to stay away from all named victims. Defendants serving time in prison for PC 288.5 convictions may also be denied visits from family member victims while in prison.
Child Protective Service (CPS) Issues: When a person is accused of PC 288.5, or other sexual or child asault type crime, he or she may have his or her child or children removed from the home during the pendency of the criminal proceedings by CPS for the protection of the remaining children in the home. This might apply even if the defendant has not yet been formally charged with a crime.
Defenses to continuous sexual abuse of a child
There are many defenses that might apply to a typical PC 288.5 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 touching, or that any touching was sexually motivated (accidental touching or lack of evidence of the defendant's state of mind). 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.
- Mistake of fact: Reasonable mistake as to the victim's age may be a defense. Also reasonable mistake that the defendant is actually touching another person may be a defense.
- Intoxication: Voluntary intoxication, if the intoxication is so severe that the defendant does not know right from wrong or the nature and quality of his or her act, may be a defense (PC 28).
- Coerced confession: If any confession by the defendant is found to be coerced by the police then the confession might be suppressed and unavailable to the district attorney to use in prosecution of the case. Unauthorized recordings might also be suppressed (PC 632).
- Statute of limitations: A statute of limitations is a law that limits the time a district attorney has to prosecute a case, including PC 288.5 cases. The statute of limitations for PC 288.5 and any underlying PC 288 case for lewd and lascivious acts are complicated. In sum, the prosecutor may commence any PC 288.5 or PC 288 case within a year of discover of the offense. (See PC 803(f)).
- Insanity Defense: If the defendant has a disease or defect of the mind at the time of the offense sufficient to cause the defendant to not understand right from wrong or appreciate the nature and quality of the act he or she is committing at the time of the offense then the defendant might be entitled to the defense of insanity.
- PC 654 Defense: The defendant may be charged with each lewd and lascivious act separately and as part of a continuous crime under PC 288.5. However, at sentencing, the judge may only sentence the defendant to either the individual acts or the continuous conduct crime charged under PC 288.5. If the essence of the offense is a continuous course of action then the sentencing might be much lighter than a sentence for each lewd and lascivious act, which carries up to an eight (8) year prison sentence each with consecutive sentencing for all charged counts.
- Plea Bargain: Plea bargains come in two variations: Sentence bargaining and charge bargaining. Depending on the facts of the case the district attorney might be willing to reduce the charge (charge bargain), or reduce the sentence to probation or low-term (sentence bargaining).
Retaining the right attorney for the job
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. Our attorneys are experienced in these crimes and our consultations are provided without cost.
Important: If you have been accused of any sex crime you should never 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 continuous sexual abuse of a child, or PC 288.5, contact our attorneys today and without delay. We will discuss your options for defense and bail for no charge. Call today!
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PC 288.5: Continuous Sexual Abuse of a Child
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Recent case results for our sex crimes attorneys
- B.C. Accused of four counts of PC 288(a) in Riverside [Defendant faced 32 years in state prison at 85% percent]. Trial: 13 year old alleged victim testified at trial as to all four counts; alleged victim's younger brother testified that he witnessed several of the offenses. The District Attorney attempted to introduce hair fiber evidence to support his case. At trial, hair fiber evidence was excluded on successful motion by defense attorney; psychologist for defense testified as to the presence of pressure on the children, by non-forensic examiners, to testify against defendant: Result: Defendant found not guilty on two counts, jury hung 6/6 on remaining two counts...no retrial by D.A. on 288(a) charges.
- F.F. Accused of two counts of PC 288(a), & PC 209(b)(1) in Riverside [Defendant faced life in prison] Trial: Psychologist testified, over prosecutor's objection, that the alleged victim suffered from common psychological phenomenon that affected her statements to the police (adopting statements of others, filling in for memory loss, confusing other person's history with her own, and questioned by goal objective officers, and others with leading, compound, and suggestive type questions: Result: Hung jury on all counts and offered probation only (no jail) before a second trial was conducted.
- E.C. Accused of seven counts ranging from 209(b)(1), 644/261 [Attempted rape on minor], 243.4 [Sexual Battery], and other sex crimes [Defendant faced life in prison plus 25 years] Trial: Confession by defendant played to jury but found to be coercive by police officers. Defense, over prosecutor's objection, was successful in bringing a medical expert to testify as to the extent of alleged victim's injuries and the inconsistencies in her testimony as it related to her alleged injuries: Result: First trial was hung on all counts, second trial defendant was found not guilty on the most severe charges and found guilty of only lesser offenses. Defendant was immediately released from custody with credit for time served after jury acquittal on most charges.
- J.G. Accused of sexual penetration of minor under PC 289 [Defendant facing 8 years in prison at 85%] Trial: Confession of defendant thrown out on defense motion. Probation only offered by the prosecutor after remaining evidence was fairly weak to support conviction [Defendant accepted]
- S.F. Accused of multiple counts of 288(a) and 288(b)(1) charges. Defense argued that the statute of limitations had expired when the alleged victim reported to a "rape crisis center" the conduct of the defendant. Defense argued that the rape crisis center is a mandated reporter and presumably reported the incident to the police. Therefore, the police are presumed to have learned of the event soon after the alleged victim reported to the rape crisis center. Outcome: Plea deal struck with DA for no-time offer before judge heard the motion to dismiss for failure to observe the statute of limitations