Continuous Sexual Abuse of a Minor (PC 288.5) under California Law

I. California Penal Code 288.5: Continuous Sexual Abuse of a Minor

Legal Definition: 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 who is under the age of fourteen at the time of the commission of the offense, or three or more acts of lewd or lascivious conduct with a child under the age of fourteen years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child.

For a person to be convicted of a violation of PC 288.5, the prosecution must prove the following:

1. That you (lived in the same home with/ [or] had recurring access to) a minor child;
2. You 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 act.

II. What does this mean?

First, you have to have access to the child, generally, this is involved when a friend or family member stays in the home where a child resides, which gives them that recurring access. Next, it has to be shown that you committed three or more acts of either substantial sexual conduct or lewd or lascivious conduct with the child.

Substantial Sexual conduct is defined as penetration of the vagina or rectum by either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.

During the time period of these acts, at least three months must have passed between the first time the alleged conduct occurred, and the most recent or last act. Therefore, if you allegedly commit this crime in January 15 times, but you move out of the house in February, then the Prosecution cannot prove you violated PC 288.5.

Lastly, like most PC 288 offenses and subsections, the minor must be under the age of 14 at the time of the acts. Thus, if some acts are committed while the minor is under 14, and others when they are older, then only the acts that occurred when the minor is under 14 would be sufficient for this charge.

III. Penalties

If you are convicted of a violation of PC 288(a), you could be sentenced to State Prison for upwards of 6, 12, or 16 years. You would also be required to serve 80% of that sentence in a State Prison, not a local county jail. You will also be required to register as a Sex Offender under the new Tier III system for 30 years. This charge would also run “full consecutive” to any additional charges you are convicted of. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

This is an extremely serious offense, requiring many years in a State Prison. In addition, there is no unanimity needed for the different acts you are accused of. For example, if someone claims you committed the act 5 times during a 4 month period, but during Jury Deliberation, the Jury does not need to agree which specific acts happened, only that at least 3 happened during that time period, thus making the Prosecution’s job much easier which prosecuting this case. As you will probably note, the offense here is another way of simply charging someone with multiple violations of PC 288(a), so long as the other elements are met, even though the exposure is different.

However, you may be charged with each lewd and lascivious act separately and as part of a continuous crime under PC 288.5. However, at sentencing, the judge can only sentence you to either the individual acts or the continuous conduct crime charged under PC 288.5. If the essence of the offense is a continuous course of action then the sentencing might be much lighter than a sentence for each lewd and lascivious act, which carries up to an eight (8) year prison sentence each with consecutive sentencing for all charged counts.

IV. Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Insanity
4. Intoxication
5. Violation of your Rights
6. False Accusations
7. Coerced Confessions

Many times this can be defended by finding the motive for the child to lie, whether someone put the child up to making a false statement, or a reason that the child would make these accusations. Similar to the defenses under PC288(a), finding the motive of the child is crucial to success.

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