Penal Code 288.5 PC is the California statute that defines the crime of continuous sexual abuse of a child under 14 years of age. This means three or more instances of sexual abuse, occurring over a duration of three months or longer. The offense is a felony punishable by up to 16 years in state prison.
288.5 PC states that “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…or three or more acts of lewd or lascivious conduct…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…”
- a stepfather having sex with his 8-year-old stepdaughter four times over an eight-month period.
- a teacher groping a child at daycare six times in the course of four months.
- a 17-year-old constantly sneaking into the house next door (over the duration of seven months) to have sex with a 13-year-old girl.
A defendant can assert a legal defense to challenge an accusation under this statute. Common defenses include:
- no “child,”
- no sexual act, and/or
- falsely accused.
The offense is punishable by custody in state prison for up to 16 years.
Our California criminal defense attorneys will explain the following in this article:
- 1. What is continuous sexual abuse of a child?
- 2. Are there legal defenses?
- 3. What are the 288.5 PC penalties?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. What is continuous sexual abuse of a child?
A prosecutor must prove the following to convict a person of continuous sexual abuse of a child:
- the defendant lived in the same home with or had recurring access to a minor child,
- the accused engaged in three or more acts of sexual conduct with the child,
- three or more months passed between the ﬁrst and last acts1, and
- the child was under the age of 14 years at the time of the acts.2
“Sexual conduct,” under this statute, means:
- oral copulation or masturbation of either the child or the perpetrator, or
- penetration of the child’s or perpetrator’s vagina or rectum.
This penetration can be by the other person’s penis or any foreign object.3
“Oral copulation” is defined as 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 for oral copulation.4
2. Are there legal defenses?
A defendant can fight a charge under this statute with a legal defense.
Three common defenses are to show that:
- the child was older than 13 when the act took place,
- the contact with the child was not sexual in nature, and/or
- the defendant is being falsely accused.
2.1. No child
A person is only guilty under this statute if he/she had sexual conduct with a child under 14. This means it is always a defense for an accused to show that the “victim” was age 14 or older.
2.2. No sexual act
These laws only apply to sexual conduct with a child. Things like innocent physical contact with a child are not prohibited. Therefore, it is a defense is for the accused to show that:
- while he may have come into contact with a child,
- it was not sexual conduct.
2.3. Falsely accused
This area of the law is unfortunately filled with false accusations. Children falsely accuse “perpetrators” for a variety of reasons. Some include:
- a child got confused about what happened,
- a parent or adult “coached” a child into making up a false story, and
- a child lied to get an adult out of his/her home.
No matter the reason, it is a defense under this statute for:
- an accused to say that,
- he/she was unjustly blamed.
3. What are the penalties?
A violation of this statute is a felony offense in California.
The crime is punishable by custody in state prison for up to 16 years.5
Note that this offense also counts as a strike under California’s three-strikes law.6
Further, convictions under these laws impose a lifetime sex offender registration requirement.
4. Are there immigration consequences?
A conviction under this statute will have negative immigration consequences.
A non-citizen defendant guilty of the continuous sexual abuse of a child could be either:
5. Can a person get a conviction expunged?
A person convicted under this statute will likely not get awarded an expungement.
By law, expungements are prohibited if a defendant receives prison time. This is opposed to time in county jail.
Since violations of Penal Code 288.5 result in a prison sentence, an expungement is unlikely.
6. Does a conviction affect gun rights?
A conviction under these laws will adversely affect a defendant’s gun rights.
California law says that convicted felons cannot:
- purchase a gun,
- own a gun, and/or
- possess a gun.
Since convictions under these laws are felonies, they strip away a defendant’s gun rights.
7. Are there related offenses?
California’s child molestation laws can be found in numerous statutes. Three common sections are:
- lewd acts with a minor child – PC 288,
- lewd acts with a minor child by force or fear – PC 288b1, and
- sexual acts with a child under 10 – PC 288.7.
7.1. Lewd acts with a minor child – PC 288
Penal Code 288 PC is the California statute that defines the crime of “lewd and lascivious acts with a minor child.”
A “lewd act” is either:
- touching a child for sexual purposes, or
- causing a child to touch him/herself or someone else for a sexual purpose.
For purposes of this statute, a minor child is a child under 16 years of age.
7.2. Lewd acts with a minor child by force or fear – PC 288b1
Penal Code 288b1 PC is the California statute that makes it a crime for a person to:
- commit a lewd act on a minor child under the age of 14, and
- do so by using force or fear of bodily injury.
A “lewd act” under this statute has the same definition as used within PC 288.
7.3. Sexual acts with a child under 10 – PC 288.7
Penal Code 288.7 PC punishes a person if he/she has sex with a child under the age of 10.
A conviction under this section triggers life in prison, even upon a first offense.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For information on similar laws in Nevada and Colorado, please see our articles on:
- “Nevada Laws for Child Sexual Abuse / Child Molestation,” and
- “Colorado Sexual Assault on a Child Laws.”
- See People v. Mejia (2007) 155 Cal.App.4th 86.
- CALCRIM No. 1120 – Continuous Sexual Abuse. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Vasquez (1996) 51 Cal.App.4th 1277.
- CALCRIM No. 1120 – Continuous Sexual Abuse.
- People v. Grim (1992) 9 Cal.App.4th 1240.
- California Penal Code 288.5 PC.
- See People v. Alvarez (2002) 100 Cal.App.4th 1170.
- Note that negative immigration consequences can take place if a non-citizen is convicted of a “crime involving moral turpitude (CIMT).” Under California law, child abuse has been marked as one such crime. See People v. Brooks (1992) 3 Cal.App.4th 669. Since a crime under PC 288.5 involves abuse of a child, the offense is a CIMT.