Penal Code § 288.5 PC defines the crime of continuous sexual abuse of a child under the age of 14. This offense occurs when there are three or more instances of sexual abuse, by someone who lives in the same home or has recurring access to the child, over a duration of three months or longer.
The offense is a felony punishable by up to 16 years in state prison.
The language of the code section reads:
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.
- 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,
- falsely accused, and/or
- no recurring access.
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. How is “continuous sexual abuse of a child” defined?
- 2. Are there legal defenses to Penal Code 288.5?
- 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. How is “continuous sexual abuse of a child” defined?
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 specific acts of sexual conduct – or lewd or lascivious 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.
Note that “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.3
Meanwhile, “lewd or lascivious conduct,” under this statute, means:
- willfully touching a child – or causing the child to touch the defendant or someone else –
- for the purpose of sexual arousal
It does not matter if the touching occurs over the clothes or on bare skin, nor does it matter if the touching occurs on areas of the body that are not “private parts”.4
2. Are there legal defenses to Penal Code 288.5?
A defendant can fight a charge under this statute with a legal defense.
Four common defense strategies to charges of continuous sexual abuse of a child 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
- the defendant is being falsely accused
- the defendant had no recurring access
As long as the D.A. cannot prove guilt beyond a reasonable doubt to the trier of fact, the charge should be dropped for insufficient evidence.
Note that it is never a defense that the child consented to the defendant’s sexual conduct. Minors are not legally able to consent to sexually-motivated acts.
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.
Typical evidence of age includes birth certificates, driver’s licenses, or other forms of identification that show date of birth.
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 for the accused to show that:
- while he may have come into contact with a child,
- it was not sexual conduct.
For example, innocently patting a child on the head while saying hello or holding their while crossing the street is no crime.
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 (ex)spouse “coached” a child into making up a false story to gain the upper hand in a child custody/divorce battle
- a child lied to get an adult out of his/her home
- the child was angry or jealous
- the child made up or exaggerated the story to get attention
No matter the motive, it is a defense under this statute for:
- an accused to say that,
- he/she was unjustly blamed.
2.4. No recurring access
PC 288.5 charges apply only if the defendant lived with the minor or had recurring access to them (such as a teacher, tutor, or babysitter). If the defense can show that there was no recurring access, the case should be dropped. (Though the D.A. may still bring other sex charges.)
Other potential defenses to child sex crime charges include law enforcement misconduct, such as the police coercing a confession or performing an illegal search and seizure during their investigation.
3. What are the penalties?
Continuous sexual abuse of a child is a felony offense in California. The crime is punishable by
- custody in state prison for 6, 12, or 16 years
- up to $10,000 in fines, 5 and
- possibly victim restitution.
Also, the judge may issue a restraining order prohibiting the defendant from having any contact with the victim. Depending on the case, the local California Child Protective Services agency may try to get the child victim removed from the home.
Note that this offense also counts as a strike under California’s three-strikes law because it is considered a serious felony and violent felony. Plus habitual sex offenders (defendants convicted of two or more qualifying sex crimes) face 25 years to life in prison.6
Further, convictions under these laws impose a lifetime sex offender registration requirement. This means defendants need to register every year within five days of their birthday or moving residences. Some defendants may not live near parks or schools.
4. Are there immigration consequences?
A conviction of continuous sexual abuse of a child will have negative immigration consequences because it is a crime involving moral turpitude.
A non-citizen defendant guilty of the continuous sexual abuse of a child victim could be either:
5. Can a person get a conviction expunged?
A person convicted for continuous sexual abuse of a minor 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 of the criminal case is unlikely.
6. Does a conviction affect gun rights?
A conviction of “continuous sexual abuse of young child or children” 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. Five common sections are:
- lewd acts with a minor child – PC 288
- lewd acts with a minor child by force or fear – PC 288b1
- sexual acts with a child under 10 – PC 288.7
- statutory rape – PC 261.5
- oral copulation with a minor – PC 287
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 sexual offense conviction under this section triggers life in prison, even upon a first offense.
7.4. Statutory rape – PC 261.5
Penal Code 261.5 PC prohibits sexual intercourse with a person under the age of 18 who is not their spouse. Consent is not a defense to statutory rape charges.
7.5. Oral copulation with a minor – PC 287
Penal Code 287 PC (formerly PC 288a) prohibits oral sex or anilingus with a person under 18 years old. This crime carries up to eight years in prison.
For additional help…
An accusation of sexual misconduct can derail your career, cause you to become a social pariah, and jeopardize your child custody rights, even if your criminal charges get dismissed.
If you have been contacted by a police officer or a detective, do not make any statements – you may unwittingly incriminate yourself. Instead, call us immediately.
In some cases, we may be able to prevent the district attorney from filing charges in the first place. Otherwise, we will negotiate in pursuit of getting the charges reduced or dismissed.
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. Our criminal defense lawyers have law offices throughout California.
For information on similar crimes under Nevada, Colorado, and Texas law, please see our articles on:
- “Nevada Laws for Child Sexual Abuse / Child Molestation,”
- “Colorado Sexual Assault on a Child Laws” and “Public Indecency“, and
- “Sex Offender Registration in the state of Texas” (including for compelling prostitution and sexual performance of a child)
- See People v. Mejia (2007) 155 Cal.App.4th 86. See also: People v. McCurdy (1923) 60 Cal.App. 499; People v. Kemp (1934) 139 Cal.App. 48; In re Harris (1993) 5 Cal.4th 813; People v. Martinez (1995) 11 Cal.4th 434; People v. Diaz (1996) 41 Cal.App.4th 1424.
- 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. See also People v. Adames (1997) 54 Cal.App.4th 198; People v. Meacham (1984) 152 Cal.App.3d 142; People v. Austin (1980) 111 Cal.App.3d 110; People v. Chambless (1999) 74 Cal.App.4th 773.
- CALCRIM No. 1120 – Continuous Sexual Abuse. See also: People v. Cardenas (1994) 21 Cal.App.4th 927; People v. Rodriguez(2002) 28 Cal.4th 543; People v. Cuellar (2012) 208 Cal.App.4th 1067; People v. Avina (1993) 14 Cal.App.4th 1303; People v. Palmer (2001) 86 Cal.App.4th 440. People v. Grim (1992) 9 Cal.App.4th 1240.
- Judicial Council of California Criminal Jury Instruction (CALCRIM) 1110 — Lewd or lascivious act: Child under 14 years.
- California Penal Code section 288.5 PC. See also: People v. Johnson (2002) 28 Cal.4th 240; People v. Torres (2002) 102 Cal.App.4th 1053.
- PC 667.71. 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 the abuse of a child, the offense is considered a CIMT.