Penal Code 288.5 PC defines the crime of continuous sexual abuse of a child. A person commits this crime if he or she
- Lives with, or has recurring access to, a child under 14 years old; and
- Over the course of 3 months or longer, commits (on the child) 3 or more acts of either
(a) substantial sexual contact or
(b) lewd acts
"Substantial sexual contact" means oral copulation with a minor, or masturbation of either the child or the perpetrator, or penetration of the child's or perpetrator's vagina or rectum by the other person's penis or by any foreign object.1 Oral copulation is separately defined in Penal Code 288a as any contact between person's mouth and the other person's vagina, anus or sanctum.2
Defined in Penal Code 288, "Lewd acts on a child" means any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child. The touching need not be done in a lewd or sexual manner. Contact with the child's bare skin or private parts is not required under Penal Code 288. Any part of the child's body or the clothes the child is wearing may be touched.3
Examples of "continuous sexual abuse of a child" would include:
- Marvin lives with his 8-year-old stepdaughter Tina. Over a six-month period, he uses his finger to rub her vaginal area on 4 to 5 occasions.
- 10-year-old Trevor goes to the day care center operated by Allen and his wife. At least 6 times over a 4-month period, Allen gropes Trevor on the child's groin area. This causes Allen arousal.
False Allegations are Common
As with all child allegation molestation laws, "continuous sexual abuse of a child" is an area of the law rife with false accusations. Many innocent people get wrongfully arrested, prosecuted and convicted.
Child accusers make false accusations for a variety of reasons. Some children are confused about the nature of what happened. Some adults, with their own ulterior motives, will "suggest" and "coach" children into fabricating false stories. Some children will make up false allegations because they don't like a certain adult, and want to get him /her out of the home.
Penalties for Continuous Sexual Abuse of a Child
Penal Code 288.5 is a felony in California law. (felony) Upon conviction, the judge has the discretion to impose either 6, 12 or 16 years of state prison. In rare cases, a judge might consider granting probation (with a year or less of county jail time).
Penal Code 288.5 is a strike under California three strikes law4 and if convicted, a person must register for life as a tier three sex offender. Learn more about California's three-tier sex offender registry.
The best legal defense to a charge of "continuous sexual abuse of a child" depends on the facts of the case. But some typical defense with which we've been successful include:
- The child is mistaken or is making up a false story
- The child was molested, but it was really another person who did it
- Parents or other adults have "coached" the child into making a false allegation
- There was some physical contact with the child, but it was not sexual in nature
"Recurring Access" Defined
PC 288.5 requires that the defendant had "recurring access to the child.5 The term generally means that the molester had an ongoing ability to approach and contact the child time after time.6 However, the nature of the relationship must be broader than merely what is necessary to accomplish the illegal sexual activity. As the court has explained
The considerations noted above lead to the conclusion that the Legislature must have intended a qualitative rather than a quantitative construction of the "recurring access" element. This is the only type of construction suggested in the legislative history: uncles, baby-sitters, ex-spouses, non-live-in-lovers, etc. There are two common characteristics of these categories. One is that in most categories suggested, the person with recurring access to the child also is in a position of authority over the child, or is in a position to command respect or obedience from the child. A second is that in each of these categories, there was an ongoing relationship between the person with recurring access and the child separate and apart from the relationship formed and characterized by the forbidden sexual activity. Even apart from the sexual activity, the uncle was still the uncle; the father, the father; the baby-sitter, the baby-sitter; the mother's boyfriend, the mother's boyfriend, and so forth.
To put this in context, consider an example:
Ned is a 17-year-old neighbor who would sneak into the house of 12-year-old Tracy and have sex with her. This happens 5 or 6 times over a 4-month period. Ned has no independent relationship with Tracy or her family aside from sneaking over periodically for sex.
This would probably not be considered "recurring access" within the meaning of Penal Code 288.5.
To be considered "continuous sexual abuse of a minor child," the sexual acts must have spanned at least 3 months. The victim must be able to describe the general time period in which these acts occurred to ensure that the acts were committed within the applicable three-month limitation period. While generic testimony such as "once a month for three years," may suffice, it cannot be so vague that the jury can only speculate as to whether the statutory elements have been satisfied.7
That said, the prosecution need not prove the exact dates of the predicate sexual offenses to satisfy the three-month element; rather, the prosecutor only has to produce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and last sexual acts.8
Three or More Acts of Abuse
The legislature's purpose in enacting Penal Code 288.5 is to address situations where a child has been molested repeatedly over a period of time, but cannot remember all the dates, times and specifics of each act of molestation.9 The statute is intended to make the prosecution's job easier in this situation.
To win a conviction, the prosecution must prove (beyond a reasonable doubt) that at least 3 of the requisite acts of molestation took place. But the jury does not have to agree as to which three, as long as every juror is satisfied that at least 3 acts took place.
Consider an example:
At trial, the prosecutor offers testimony about 4 acts of molestation, each act occurring 2 months apart. In deliberations, 6 of the jurors find that only the first 3 acts were proved sufficiently. The other 6 jurors find that only the last 3 acts were sufficiently proved. Even though there is no unanimous agreement as to which 3 acts, the jurors can still reach a guilty verdict.
Call us for help...
If you or loved one is charged with Penal Code 288.5 PC continuous sexual abuse of a child and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For general information about Nevada child sex crimes, see our article on Nevada child sex crimes.
1 See Penal Code 1203.066(b) and CALCRIM 1120, the jury instruction on Penal Code 288.5:
The defendant is charged [in Count ] with continuous sexual abuse of a child under the age of 14 years [in violation of Penal Code section 288.5(a)].
To prove that the defendant is guilty of this crime, the People must prove that:
1 The defendant (lived in the same home with/ [or] had recurring access to) a minor child;
2 The defendant engaged in three or more acts of (substantial sexual conduct/ [or] lewd or lascivious conduct) with the child;
3 Three or more months passed between the first and last acts;AND
4 The child was under the age of 14 years at the time of the acts.
[Substantial sexual conduct means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child's or perpetrator's vagina or rectum by (the other person's penis/ [or] any foreign object).][Oral copulation is 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.]
[Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child. The touching need not be done in a lewd or sexual manner. Contact with the child's bare skin or private parts is not required. Any part of the child's body or the clothes the child is wearing may be touched.] [Lewd or lascivious conduct [also] includes causing a child to touch his or her own body or someone else's body at the instigation of a perpetrator who has the required intent.]
[Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.]
You cannot convict the defendant unless all of you agree that (he/she) committed three or more acts over a period of at least three months, but you do not all need to agree on which three acts were committed.
[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or child is not required for lewd or lascivious conduct.][It is not a defense that the child may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]
New January 2006
2People v. Catelli (1991) 227 Cal.App.3d 1434, 1448-1449.
3See CALCRIM 1110, the jury instruction on Penal Code 288 (a):
4 California Penal Code 1192.7(c)(6) and 667.5(c)(6); learn more about California Senate Bill 384.
5 People v. Gohdes (1997) 58 Cal.App.4th 1520, 1529.
6 People v. Rodriguez (2002) 122 Cal.Rptr.2d 348, 28 Cal.4th 543
7 People v. Mejia (App. 2 Dist. 2007) 65 Cal.Rptr.3d 776, 155 Cal.App.4th 86
8 People v. Mejia (App. 2 Dist. 2007) 65 Cal.Rptr.3d 776, 155 Cal.App.4th 86.
9 People v. Johnson (App. 2 Dist. 1995) 46 Cal.Rptr.2d 838, 40 Cal.App.4th 24.