What is Considered Continuous Sexual Abuse of a Child

02 Dec 22

Engaging in sexual conduct with a minor under 14 years old three or more times over at least three months will attract prosecution under Penal Code 288.5. This statute considers offenders as individuals residing in the same house as a minor or with regular access to the minor to engage in lewd conduct with the child.

Children are a significant part of the vulnerable population. That is why exposing a child to lewd behavior is a grave offense. Understanding the crime will prove beneficial in preparing your defense. It involves analyzing the crime as described under California law, the penalties you will likely face upon conviction, and the defenses you can raise to challenge the charges.

Continuous Sexual Abuse of a Child Under California Law

Continuous sexual abuse is related to lascivious or lewd acts with a child under 14 years, an offense under Penal Code 288. However, Penal Code 288.5 addresses the more grave crime of individuals with access to children sexually abusing minors.

PC 288.5 definition of continuous sexual abuse is when any individual with recurring access to a minor or who resides in the same home as the child, over a period of time, no less than three months, engages in three or more acts of lascivious or lewd behavior or substantial acts of sexual conduct with a minor aged 14 years or less at the time of the offense.

PC 288.5’s definition provides the elements of the crime for which prosecutors must prove beyond a reasonable doubt. Only then will a jury find you guilty.

• You resided in the same house as the minor or had recurring access to the child
• You engaged in three or more acts of lascivious or lewd conduct or substantial sexual conduct with the minor
• The three or more acts occurred over a period of no less than three months
• The minor was 14 or younger at the time of the incident

Here is a detailed look at the key elements.

Recurring Access

Recurring access is the ongoing ability of an individual to contact or approach a child, in this case, regularly. Recurring access does not require the defendant to have authority over the minor or have an ongoing relationship separate from the sexual activity with the minor.

For example, a neighbor repeatedly enters a minor’s home without the child’s parents’ knowledge and has sex with the child.

In this case, the neighbor has recurring access to the minor. This is so despite the parents’ not being aware of the neighbor’s access to their home or that the neighbor had no established relationship with the child.

Substantial Sexual Conduct

Penal Code 1203.066(b) defines substantial sexual conduct as the penetration of the victim’s or the offender’s rectum or vagina, the victim’s or offender’s penis, or a foreign object. These actions include oral copulation or masturbation of the offender or victim.

Oral copulation refers to contact between an individual’s mouth and another’s sexual organ or anus. Oral copulation does not require penetration of an intimate part.

Lascivious or Lewd Conduct

According to Penal Code 288(a), lewd or lascivious conduct is willfully touching a minor’s body with the intent of sexually arousing the child or the offender. Bare skin contact or contact with their private parts is not required to indicate lewd or lascivious conduct. The act is deemed to have occurred if:

• You touch any part of the child’s body, or
• You cause the moor to touch his/her own body, your body, or a third party’s body for sexual gratification

It is also lewd or lascivious if the contact is achieved through the child’s clothing.

Note: The law deems children incapable of giving consent. Therefore, it is not a defense to claim the child consented. This also extends to situations where the alleged victim is a minor (less than 18 years of age but older than 14 years old), even if you reasonably believed the minor was 18 or older at the time.

Legal Defenses You Can Raise

Common legal defenses have proven successful in challenging the prosecution’s case. They target the elements required to find you guilty and create reasonable doubt. Here is a look at each of them.

1. No Recurring Access

Prosecutors bear the burden of proving you had recurring access to the child. Without substantially proving you had recurring access, your attorney can assert that you did not have regular access to the child. Thus, you cannot be guilty of continuous sexual abuse.

2. Insufficient Evidence

Recall that PC 288.5 requires that there were substantial sexual acts with the child. Innocent physical contact with a child is not illegal. Thus defense attorneys demonstrate to the court that you made physical contact with the minor. However, the touch was not sexual.

Prosecutors bear the burden of proving that there was sexual conduct and that it occurred over at least three months. Without irrefutable evidence to substantiate their claim, defense attorneys will challenge the prosecution’s assertion of sexual behavior occurring within at least three months. This approach should cast sufficient doubt to warrant a reduction of the charges, if not a dismissal.

3. False Accusations

It is possible that you were falsely accused of having continuous sexual conduct with a child. There are several reasons for these, namely:

• The child was confused about what transpired,
• The minor lied to have you kicked out of the house,
• The child’s parents or adults close to the child coached him/her to make false allegations, or
• The accusations are born of jealousy, anger, spite, or a need for revenge.

Whatever the motivation behind the false claims, this defense helps dismiss the charges.

4. Police Misconduct

Without sufficient evidence, police officers could resort to coercive interrogation techniques to force you to confess to the accusations. These actions are a case of police misconduct and a violation of your rights. Your defense attorney will demonstrate to the court the techniques and enormous pressure you faced. Therefore, your confession was coerced and cannot be relied upon.

Penalties Under Penal Code 288.5

Continuous sexual abuse of a minor is a felony offense. Convictions result in 6, 12, or 16 years in prison. Further, the judge, pursuant to Senate Bill 145, will impose a sex offender registration requirement. You will renew the sex offender tag annually within a period the preceding judge will so order.

Convictions for continuous sexual abuse of a minor also attract a strike under California’s Three Strikes Law. You earn your first strike if the PC 288.5 violation is your first conviction. Your penalties remain as issued by the judge for this offense.

Your penalties will double if the PC 288.5 violation earns you a second strike on your record. You will serve twice the sentence issued upon conviction. If you have two prior strikes on your record and the conviction for continuous sexual abuse of a child earns a third strike, you face 25 years to life in prison for the current charge.

Impact on Immigration

Continuous sexual abuse of minors is a crime involving moral turpitude (CMT). Under immigration laws, a crime involving moral turpitude is a deportable offense. A conviction means you will be deported to your country of origin and marked inadmissible. Therefore, you will be denied re-entry to the U.S.

Impact of Gun Rights

PC 288.5 violations are felonies. Convicted felons cannot own, possess, purchase, or receive a gun. If found with one, you risk additional penalties since your actions violate PC 29800. If found guilty, you will face up to three years in prison.

Expunging Your Conviction

Expungements remove convictions from an individual’s criminal record, thus freeing them from the impairments of a sentence. You only qualify for an expungement if you did not serve a prison sentence for your offense. Further, you must complete your probation or jail term.

Since continuous sexual abuse of a minor is a felony, you do not qualify for an expungement of your criminal record. Therefore, any person who runs a background check will see your conviction.

Statute of Limitations

There is no set time limit under California’s Statute of Limitations for the District Attorney to institute criminal charges against individuals accused of engaging in continuous sexual abuse of a minor. Police officers will investigate the allegations, and prosecutors will seek a conviction even if the alleged victim, a minor at the time of the incident, is an adult.

Offenses Considered as Child Molestation

Child molestation laws address other inappropriate conduct with a minor. The offenses addressed below are related to continuous sexual acts with a minor. Therefore, prosecutors could pursue charges for these crimes as additional charges or alternatives to which a defendant should plead guilty in a plea bargain agreement. They are:

• Lewd acts with a child, a violation of PC 288
• Lewd conduct with a child achieved by the use of force or fear, a violation of PC 288(b)(1)
• Lewd acts with a minor, causing bodily harm, a crime under PC 288(i)
• Sexual acts with a child under ten years of age, an offense under PC 288.7

Each of these offenses has specific elements that prosecutors must prove. Further, each crime imposes particular penalties upon conviction. Here is a look at each crime in detail.

1. Lewd or Lascivious Conduct With a Minor

Penal Code 288 makes it an offense to willfully engage in lewd behavior with a minor to gratify yourself, the child, or another individual sexually. Any acts, sexual or indecent, fall under lascivious conduct. Penal Code 288 specifically addresses lascivious or lewd conduct targeting minors 14 years or younger.

Prosecutors have to prove that:

• You willfully and lewdly touched a child’s body or caused the minor to touch his/her, your, or another individual’s body  — Touch does not necessarily have to be bare skin contact. Indirect touch through clothing suffices. Additionally, touch is not limited to sexual organs. Any part of a child’s body is enough to warrant charges under PC 288, and
• You engaged in the conduct with an intent to appeal, arouse, or gratify the passion, lust, or sexual desires of the minor, yourself, or a third party.

PC 288 violations are specific intent crimes, meaning prosecutors must prove you had a specific intent to satisfy a sexual desire or arousal for the jury to find you guilty. Sexual intent is a question of fact for the jury to decide. They consider factors including:

• The nature of the touch
• The context in which the contact occurred
• The nature of the relationship between the minor and the perpetrator, and
• The lack of a reasonable or innocent explanation for the touch

Penalties for Lewd Conduct With a Child

The penalties under PC 288 vary depending on the circumstances of the case. Your criminal history, the minor’s age, and whether you used force or fear determine your punishment upon conviction.

Lewd Conduct With a Minor Without Force or Fear

If you did not use intimidatory tactics while engaging in lewd behavior with a minor 14 years of age or younger, your actions violate PC 288(a). This offense is a felony.

You will face 3, 6, or 8 years in prison and a maximum fine of $10,000 upon conviction.

Lewd Conduct With a Minor Involving Force or Fear

It is a violation of PC 288(b)(1) to use force, fear, violence, threats, or duress while engaging in lascivious behavior with a minor 14 years or younger.

• Fear — The courts consider both reasonable and unreasonable fear as experienced by the child.
• Violence — Courts consider whether the offender used any form of physical force intended to cause harm or threats of bodily injury to accomplish the crime.
• Duress — An examination of the totality of the case circumstances determines whether coercion occurred. The courts consider factors including the physical control of the victim, the threats of harm issued to the child, and the warnings to the child of possible harm to him/her or his/her family should the child tell anyone of the perpetrator’s actions.

Violations of PC 288(b)(1) are felonies punishable by a prison sentence of 5, 8, or 10 years and a maximum fine of $10,000.

Lewd Conduct With a Minor Resulting in Injuries

If you engage in lascivious behavior with a child 14 years of age or younger and the victim is injured, you will violate PC 288(i). The penalties for this offense increase significantly.

If you personally inflict physical harm on the child, you will face:

• A life sentence per PC 288(i),
• 25 years to life in prison as per PC 667.61(d)(7), and
• A five-year sentence enhancement for inflicting bodily harm per PC 12022.8

Convictions under Penal Code 288 impose a lifetime registration as a Tier Three sex offender.

2. Sexual Conduct With a Minor Under 10 Years of Age,

Prosecutors will likely seek a conviction under PC 288.7 if you engage in sexual penetration or intercourse with a minor under ten years old.

A conviction is likely if the prosecutor proves that:

• You engaged in any of the following acts:

1. Sodomy — The penetration of another’s anus by another individual’s penis,
2. Sexual intercourse — Penetration of another’s vagina by the penis. Ejaculation is not necessary for the penetration to be deemed sexual intercourse,
3. Oral copulation — Contact between a person’s mouth and another individual’s genitalia or anus, or
4. Sexual penetration — Penetration of a person’s genitalia or anus by using a foreign object

• The child was ten years or younger a the time
• You were at least 18 years old at the time

PC 288.7 caps the victim’s age at ten years old. Therefore, prosecutors will opt for charges under PC 288 if the victim is ten years of age or older.

Sexual conduct is a strict liability offense. All prosecutors need to prove is that you engaged in any of the above-mentioned acts with a child ten years old or younger to secure your conviction.

Penalties for Sexual Conduct With a Minor Under 10

Convictions result in felony penalties. The penalties depend on the sexual act committed.

• Engaging in sodomy or sexual intercourse, a violation of PC 288.7(a), results in 25 years to life in prison.
• Engaging in sexual penetration or oral copulation, a violation of PC 288.7(b), results in 15 years to life in prison.

Further, you must register as a Tier-Three sex offender if convicted under PC 288.7. You retain the sex offender tag for life.

Note: Convictions for sexual conduct with minors under ten years of age are not expungable.

Contact a Criminal Defense Attorney Near Me

Prosecutions and convictions for the continuous sexual abuse of a child impose life-changing consequences. Early intervention is key. At Leah Legal, we review the investigation reports and charges and present our findings to the Van Nuys prosecutors as a pre-filling intervention approach to have the charges reduced or dismissed. Should the prosecution proceed to trial, we will mount an ideal defense strategy to challenge the charges. Contact us today at 818-484-1100 for a review of your case.