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.

The offense is a felony punishable by life in prison.

The language of the statute reads:

287. (a) 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 shall be punished by imprisonment in the state prison for a term of 25 years to life.

(b) Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.

This code section represents just one of several child molestation laws in California.

Examples

• an adult having sex with a boy an 8-year-old boy.
• a 35-year-old man sexually penetrating a child aged 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 an accused showing that:

• 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 this law is charged as a felony (as opposed to a misdemeanor or an infraction).

The crime is punishable by up to life in prison.

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

• 1. What does it mean to engage in sexual acts with a child under 10?
• 2. How do police build a case for Penal Code 288.7 PC?
  • 2.1 Out of custody interrogations
  • 2.2 Lie detector test
  • 2.3 Pretext call
• 3. What are the best defenses to this charge?
  • 3.1 Victim not under 10 years of age
  • 3.2 No sexual contact
  • 3.3 Falsely accused
• 4. What are the penalties?
• 5. Are there immigration consequences?
• 6. Can a person get a conviction expunged?
• 7. Does a convicted person have to register as a California sex offender?
• 8. Are there related offenses?
  • 8.1 Lewd acts on a child – PC 288
  • 8.2 Oral copulation on a minor – PC 288a
  • 8.3 Continuous sexual abuse of a child – PC 288.5

1. What does it mean to engage in sexual acts with a child under 10?

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

For the purposes of this code section, the following definitions are helpful:

• “sexual intercourse” means any penetration of the vagina or genitalia by the penis – ejaculation is not required,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 10th birthday.⁶

Note that this offense is a strict liability crime. Strict liability means that a prosecutor does not have to prove that a defendant acted with any type of criminal or evil intent when he/she engaged in an act with a child. A prosecutor only has to show that the defendant committed one of the sexual acts listed above.

Also, note that a person can be convicted of this offense even if the party is a family member of the suspect.

Further, a person can also be charged under this law if he/she engaged in consensual sex with a child. Under California law, no minor under the age of 18 can legally consent to sexual activity.

2. How do police build a case for Penal Code 288.7 PC?

There are three common techniques that law enforcement use to try to connect people with violations of this code section. Any one of these techniques can lead to a person confessing to having sex with a child under 10. This is true even if the party did not actually commit a crime.

2.1. Out of custody interrogations

This occurs when police interrogate a suspect who has not been arrested for an offense. In an out of custody interrogation, law enforcement typically calls a person and informs him/her that an accusation of a sexual act has been made. The police then invite the party to come to the police station so that they can hear all sides of the story.

In this situation, the police do not have to read the person his/her Miranda rights. This is because the person is not technically “in custody.” The police then question the suspect and try to elicit a confession.

2.2. Lie detector test

Under this technique, law enforcement convinces a person to submit to a lie-detector test (also referred to as a “polygraph test”).

Note that while certain statements made in these tests can be admitted in court, the results of the test are inadmissible unless the prosecution and the defendant agree they should be admitted.

Police typically break a lie detector test into several phases. Officers and investigators use several tactics in each phase to try and trick a person into confessing to a crime.

2.3. Pretext call

With a pretext call, law enforcement has the “victim child” or their parent directly call the suspect while the police listen in. The caller accuses the suspect of committing the crime and then askes the person why they committed it. Police, then, wait for the suspect to make an incriminating statement or wait for the person to apologize for the crime. A prosecutor can use any damaging statements that a suspect makes during the call in any subsequent criminal case that gets filed.

3. What are the best defenses to this charge?

Defense lawyers draw upon several legal strategies in contesting charges under this code section. 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.

3.1. 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 while he had sexual contact with a minor, that person was 10 years old or older.

3.2. 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 while he contacted or touched a minor, the contact was not sexual in nature. For example, maybe an accused bumped into a child while playing a game.

3.3. 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 a dark or unfamiliar place,
3. the perpetrator was of a different race than the defendant,
4. the child was very young, or
5. someone coached the child into blaming the defendant.

No matter the exact reasoning behind the child’s confusion, a defendant can always assert the defense that he/she was unjustly blamed.

4. What are the penalties?

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

The term of the sentence depends on the type of sexual act committed by the defendant.

If a defendant engaged in either sexual intercourse or sodomy (a violation of Penal Code 288.7a), then the term is 25 years to life in state prison.⁷

If the defendant engaged in either oral copulation or sexual penetration (a violation of Penal Code 288.7b), the term is 15 years to life in prison.

Note that when a defendant is convicted under this statute and receives a punishment of a set number of years in prison with the possibility of life in prison, the defendant has to serve the minimum number of years imposed. The party, then, can be released from custody, but only by a positive determination in a California Parole Board Hearing (also referred to as a “lifer hearing”).

Note, too, that once a person is charged with a violation of this code section, the judge will issue a criminal protective order against the defendant. The order will prohibit the defendant from having contact with the “victim.”

5. 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 (CIMT).”

A CIMT results in a non-citizen being either:

• deported, or
• marked as inadmissible.

6. Can a person get a conviction 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.

7. 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.

8. 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 288a, and
3. continuous sexual abuse of a child – PC 288.5.

8.1. 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.

8.2. Oral copulation on a minor – PC 288a

Penal Code 288a 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.

8.3. 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 the Shouse Law Group.

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

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