Penal Code 288.7 PC – Sex With a Child Under 10

Penal Code 288.7 PC is the California statute that makes it a crime for an adult to engage in certain sexual acts with a child under the age of 10. These acts include sexual intercourse, sodomy, oral copulation, and sexual penetration. A conviction is a felony punishable by life in state prison.

288.7 PC states that, “any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and …any person 18 years of age or older who engages in oral copulation or sexual penetration…with a child who is 10 years of age or younger is guilty of a felony…”.

This section is one of several child molestation laws in California.

Examples

• an adult having sex with a boy 8 years of age.
• a 35-year old man sexually penetrating a child age 7.
• a 24-year old teacher engaging in sodomy with a 9-year old student.

Defenses

A defendant can challenge a charge under this statute with a legal defense. Common defenses include:

• the “victim” was 10 years old or older,
• to the extent there was contact with a child, it was not “sexual” in nature, and/or
• the accuser made a false accusation.

Penalties

A violation of these laws is charged as a felony. This is opposed to a misdemeanor or an infraction.

The crime is punishable by up to life in prison.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is a crime under this statute?
• 2. Are there defenses to Penal Code 288.7 PC charges?
  • 2.1. Victim not under 10 years of age
  • 2.2. No sexual contact
  • 2.3. Falsely accused
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a conviction be expunged?
• 6. Does a convicted person have to register as a California sex offender?
• 7. Are there related offenses?
  • 7.1. Lewd acts on a child – PC 288
  • 7.2. Oral copulation on a minor – PC 287
  • 7.3. Continuous sexual abuse of a child – PC 288.5

1. What is a crime under this statute?

A prosecutor must prove the following to convict a defendant under this statute:

1. the defendant engaged in any of the following acts with a child:
   • a. sexual intercourse,
   • b. sodomy,
   • c. oral copulation, or
   • d. sexual penetration
2. when the defendant did so, the child was 10 years of age or younger, and
3. at the time of the act, the defendant was at least 18 years old.¹

Note the following definitions:

• “sexual intercourse” means any penetration of the vagina or genitalia by the penis,²
• “sodomy” is any penetration of the anus of one person by the penis of another person,³
• “oral copulation” is any contact between the mouth of one person and the sexual organ or anus of another person,⁴ and
• “sexual penetration” means any penetration of the genital or anal opening of someone via a foreign object.⁵

In terms of a victim’s age, the phrase “10 years of age or younger” excludes victims who have passed their 10^th birthday.⁶

2. Are there defenses to Penal Code 288.7 PC charges?

Defense lawyers draw on several legal strategies in attacking charges under these laws. These include showing that:

1. the alleged “victim” was 10 years old or older.
2. to the extent that there was contact with a child, it was not sexual in nature.
3. the accuser made a false accusation.

2.1. Victim not under 10 years of age

This statute only applies to children that are under the age of 10. This means it is always a defense for an accused to show that:

1. he had sexual contact with a minor, but
2. that person was 10 years old or older.

2.2. No sexual contact

Penal Code 288.7 applies to sexual acts with children. It does not make it a crime to innocently touch or contact a child.

This means it is a valid defense for a defendant to say that:

1. he contacted or touched a minor, but
2. that contact was not sexual in nature.

Perhaps, for example, an accused bumped into a child while playing a game.

2.3. Falsely accused

Sometimes a child gets touched inappropriately but is confused about the identity of the perpetrator. This is especially common when:

1. the defendant was unknown to the child,
2. the touching took place in dark or unfamiliar place,
3. the perpetrator was a different race than the defendant, or
4. the child was very young.

All of these can lead to false accusations. A child can also wrongfully blame a person out of:

• an ulterior motive, or
• adult manipulation.

No matter the reasoning behind the child’s acts, a defendant can always assert that he was unjustly blamed.

3. What are the penalties?

A violation of this statute is charged as a felony. The crime is punishable by a California state prison sentence.

The term of the sentence is different for the type of sexual act a defendant committed.

If a defendant engaged in either sexual intercourse or sodomy, then the term is:

• 25 years in prison, to
• life in prison.⁷

If the defendant engaged in either oral copulation or sexual penetration, the term is:

• 15 years in prison, to
• life in prison.

4. Are there immigration consequences?

A conviction under this statute will have negative immigration consequences.

This is because a violation of PC 288.7 is a “crime involving moral turpitude.”

This means that a non-citizen convicted of the offense can be either:

• deported, or
• marked as inadmissible.

5. Can a conviction be expunged?

A person cannot get an expungement if convicted of this crime.

As a general rule, expungements are not available for convictions resulting in prison terms.

6. Does a convicted person have to register as a California sex offender?

A person guilty of this crime does have to register as a sex offender per Penal Code 290 PC.

A convicted party has to register as a tier-three sex offender for life.

In general, the Sex Offender Registration Act requires that offenders:

• perform an original registration with a local law enforcement agency, and
• annually update information with that same agency.

7. Are there related offenses?

There are three crimes related to sex with a child under 10. These are:

1. lewd acts on a child – PC 288,
2. oral copulation on a minor – PC 287, and
3. continuous sexual abuse of a child – PC 288.5.

7.1. Lewd acts on a child – PC 288

Penal Code 288 PC makes it a crime for a person to commit a lewd act on a child under the age of 16.

A “lewd act” includes:

• touching a child for sexual purposes, or
• causing a child to touch him/herself or someone else for a sexual purpose.

7.2. Oral copulation on a minor – PC 287

Penal Code 287 PC says it is a crime for a person to perform oral copulation on a minor under the age of 18.

“Oral copulation” has the same definition as used under Penal Code 288.7.

7.3. Continuous sexual abuse of a child – PC 288.5

Penal Code 288.5 PC is the California statute that makes it a crime for a person to engage in the continuous sexual abuse of a child under 14 years of age.

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 crimes in Nevada, please see our article on: “Nevada Laws for Child Sexual Abuse / Child Molestation.”

---

Legal References: