The statute of limitations for child molestation in California

In California, the criminal statute of limitations for child molestation can be between 1 year and forever. Recent changes to the law have allowed prosecutors to file charges at any time in some cases.

The specific nature of the allegations will determine how long law enforcement has to initiate a particular case.

Which statute of limitations is used for sex crimes involving children?

In California, there are 9 different offenses that fall within the state’s child molestation laws. Some have statutes of limitations that require law enforcement to initiate a case within 1 year. Others have statutes of limitations that let prosecutors file a case at any time after the offense has been committed:

Sex offense	Statute of limitations
Statutory rape (Penal Code 261.5 PC)	1 year for a misdemeanor, 3 years for a felony1
Oral copulation with a minor (Penal Code 287 PC)	In some cases, at any time in the future2
Lewd or lascivious act with a child (Penal Code 288 PC)	In some cases, at any time in the future3
Sending sexually explicit content to a minor (Penal Code 288.2 PC)	1 year for a misdemeanor, 3 years for a felony4
Contacting a minor to commit a felony or sex crime (Penal Code 288.3 PC)	3 years5
Arranging to meet a minor to engage in sexual conduct (Penal Code 288.4 PC)	1 year for a misdemeanor, 3 years for a felony6
Continuous sexual abuse of a child under 14 (Penal Code 288.5 PC)	At any time7
Sexual acts with a child under 10 (Penal Code 288.7 PC)	At any time8
Irritating a minor with sexual interest (Penal Code 647.6 PC)	1 year for a misdemeanor and 3 years for a felony, or 3 years if the victim was under 149

The statute of limitations for two of these offenses is complex:

• oral copulation with a minor, and
• committing a lewd and lascivious act with a child.

Oral copulation

Oral copulation charges can be filed at any time if the offense:

• was committed against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful injury to the victim or another person,
• was committed against the victim’s will by a threat of retaliation,
• involved voluntarily acting in concert with another to commit the act,
• involved a victim who was known to be unconscious of the nature of the act, whether because asleep, because they were unaware that the act was occurring, or because they were misled by the perpetrator’s fraud,
• involved a victim who was incapable of giving legal consent due to a mental or physical disability,
• involved a victim who could not resist because they were drugged, and the perpetrator had reason to know this, or
• was committed against the victim’s will by a threat to use the perpetrator’s real or apparent authority to imprison, arrest, or deport the victim or someone else.¹⁰

Otherwise, oral copulation charges have to be filed:

• any time before the victim’s 40th birthday, if the alleged offense occurred in 2015 or later, or the applicable statute of limitations had not expired by then,¹¹ or
• within 1 year of the victim reporting to California police that he or she was penetrated by an unknown object while under 18 years of age.¹²

Lewd and lascivious acts with a child

Charges of committing a lewd and lascivious act with a child can be filed at any time if the offense involved the touching of a child under the age of 14 for sexual purposes, and:

• the use of force, violence, duress, menace, or fear of immediate and unlawful injury to the victim or someone else,
• sexual penetration of either the sex offender’s or victim’s vagina or rectum by the penis or a foreign object,
• oral copulation, or
• masturbation of either the sex offender or victim.¹³

Otherwise, charges for lewd and lascivious acts have to be filed:

• before the victim turns 40, provided that the statute of limitations had not expired before January 1, 2015,¹⁴ or
• within 1 year of the victim telling police that they were penetrated by an unknown object while they were still a minor, and
  1. The statute of limitations already expired; and
  2. The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual; and
  3. There is independent evidence that corroborates the victim’s allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation. “Independent evidence” excludes the opinions of mental health professionals.¹⁵

These rules are very complex. They were also changed with a new law that took effect on January 1, 2017.¹⁶ I can help you figure out if a child molestation charge is time-barred or not.

What if new DNA evidence is found?

If new DNA evidence is discovered, it will reopen the criminal statute of limitations in California for 1 year.¹⁷

Numerous other states may alter the time period to file certain charges if DNA evidence is found, as well.

Some of these states are:

• Colorado,
• Connecticut,
• Iowa,
• Minnesota,
• New Jersey,
• New Mexico,
• New York, and
• Oregon.

How do statutes of limitations work?

A criminal statute of limitations is a law that specifies when criminal charges can be filed against a defendant by law enforcement. They generally set a number of years that the prosecutor has to file a criminal case. If that time period expires before the charges are filed, the defendant can often get the case dismissed.

These are different from a civil statute of limitations. The civil statute of limitations for a victim of child sex assault to sue their perpetrator is the later of:

• the survivor’s 40th birthday; or
• Within five years of discovering that “psychological injury or illness occurring after the age of majority was caused by the sexual assault.”¹⁸

Pros and cons

For criminal sex offenses involving child victims, the statute of limitations can be controversial. On the one hand, there is the interest in holding perpetrators accountable and the reality that child victims are less likely to come forward than adult victims. On the other hand, allowing charges to be filed long after the incident has other repercussions, such as:

• evidence getting stale,
• witnesses forgetting what they saw or heard,
• people dying, and
• the defendant’s inability to repose.

The recent trend, however, has been towards lengthening the time limit to help victims of child molestation hold their abuser accountable.

What is the law in other states?

Most other states do not have as many child molestation laws as California. Some have even eliminated the statute of limitations for certain serious sex crimes, often those involving children. In either case, it can make it easier to determine whether a child molestation case is time-barred.

In many states, child molestation falls under sexual offense statutes that cover:

• statutory rape,
• sexual battery,
• sexual exploitation, or
• child sexual abuse cases.

With fewer criminal laws, the statute of limitations is often much simpler, as well. For example, in New York, the period of time to file charges depends entirely on the specific offense:

• until the underage victim turns 28 for the following charges:
  • first-degree child sex abuse,
  • aggravated sexual abuse in the second degree,
  • course of sexual conduct against a child in the third degree, or
  • predatory sexual assault against a child.
• at any time:
  • course of sexual conduct against a child in the first degree, or
  • incest in the first degree.¹⁹

States that have eliminated their statute of limitations for serious sex offenses include:

• Kentucky,
• Maryland,
• North Carolina, and
• South Carolina.

In these states, prosecutors can file serious sex offense charges at any point after the offense was committed.

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