Molesting a child is a serious crime in California. Depending on the specifics of the case, you risk facing lengthy jail sentences and being required to register as a sexual offender for the rest of your life. Even if no official charges are brought against you, just being accused of these charges could be enough to drastically devastate both your career and personal life.
If you are facing criminal charges or are being investigated for the continuous sexual abuse of a child, you should get in touch with a criminal defense attorney. Read on to learn more about these charges and how they are prosecuted in California.
Understanding What Continuous Sexual Abuse of a Child Entails
In the legal field, the phrase "continuous sexual abuse" is considered a term of art. That signifies that the term has a specific legal definition, which may or may not coincide with your understanding of the term.
The description is found under California PC § 288.5.1. Legally, the prosecution must demonstrate the following factors to charge a defendant with continuous sexual abuse of a minor:
- The defendant either shared a residence with the young child or did have recurring contact with the minor.
- The defendant committed three or maybe more forms of significant sexual behavior, or lascivious or lewd behavior with the minor.
- These three or maybe more incidents took place over at least three months.
- At the moment of the alleged offenses, the minor was younger than 14 years old.
What The California Penal Code Mean By "Recurring Access"
Did you possess a "continual capacity to access and make contact with the child?" To begin with, the California Supreme Court has declared that "recurring access" refers to having the continuous ability to access and make contact with the minor in question over and over again.
In reaching this decision, the Court explicitly disregarded a ruling from a lower court that the "recurring access" needed to prove that the alleged offender had some kind of control over the minor and the relationship with the minor that was unrelated to the alleged sexual conduct.
A neighbor, for instance, could be said to have "continual access" to a minor even if he or she had no previous relationship or contact with the minor. This is true even though the minor's parent(s) were unaware that he or she was visiting the home on multiple occasions and engaging in sexual activity with the minor.
What Does The Criminal Code Mean When It Refers To "Substantial Sexual Conduct?"
Additionally, the term "substantial sexual behavior" has a distinct definition. This phrase is defined under Penal Code § 1203.066(b), which refers to "masturbation, oral copulation, or penetrating the rectum or vagina either of the offender or victim using the penis or any other foreign object."
The Penal Code's Definition of "Lewd or Lascivious Conduct"
Thirdly, "lascivious or lewd conduct" is described under California PC § 288(a) as the act of touching any portion of a minor's body. Any portion means that the contact does not necessarily need to be the minor's "private" parts, including sexual organs, breast area, or buttocks. It could be any region of the minor's body), whether by skin contact or over clothes, to appeal, arouse, the gratification of lust, sexual desires, or passions of the defendant or the minor.
To put it another way, according to the law, a defendant is guilty of lascivious or lewd contact if they contact any area of a minor's body to engage in "sexual activity," regardless of whether the contact takes place with the clothes on or not. It is unnecessary for the "passion, sexual urges, or lust of either the minor or the defendant" to be stimulated. Consent from a minor does not constitute a defense.
Penalties for Continuous Sexual Abuse of a Minor
Penal Code 288.5 is considered a felony. If the offender is found guilty, he or she might face a sixteen-year maximum prison sentence. If the offender is found guilty and handed a prison term, the term will be completed at 85%. This means that even though the defendant gets good behavior points, they will still be obliged to serve a minimum of 85% of their prison term.
Under Penal Code 288.5(a), the minimum term for continuous sexual abuse against a minor is 6 years, and the mid-term sentencing is 12 years.
Probationary Sentence
An alternative to incarceration is a period of probationary monitoring. An individual convicted of Penal Code 288.5(i) could be eligible for probation under special conditions.
The definition of a special condition varies, but can probably include circumstances where the victims (often family) do not wish for the offender to do time in prison, the offender has no criminal background, and the details of the matter tend to indicate substantial mitigation regarding the seriousness of the offender's conduct (poor mental awareness or drug misuse involved), and the victim's harm is minimal regarding the mental or bodily injury.
In any case, probation is unlikely to be awarded to the offender if the allegations involve considerable sexual conduct aggravation (Penal Code 1203.066).
The judge's decision about the defendant's sentencing will mostly be influenced by the nature and details of the matter as well as the accused's prior criminal history. The judge could sentence the offender to a probationary term without imprisonment, a low-term sentencing, a mid-term sentencing, or a maximum penalty of sixteen years (California Rules of Court 4.421 and 4.423).
Registration as a Sex Offender
The offender will be required to register as a sexual offender if convicted of Penal Code 288.5(i). The offender is required to register as a sexual offender with the state authorities agency once each year, and this registration must take place within five days of the accused's birthday.
Sex offenders are restricted from living in certain areas, and particular laws apply to violent sexual offenders and transients. This is outlined under Penal Code 290(ii), 290.001, and 290.011).
Penal Code 1170(viii)
Sentences under Penal Code 1170(h) do not apply to California Penal 288.5(a). This implies that when a person is found guilty of violating Penal Code 288.5(a) without receiving probation, they must serve their complete prison term in prison (instead of a local jail facility), and no section of it can be suspended or split.
Three-Strike Offenses
In California, Penal Code 288.5(i) and the underpinning felony of Penal Code 288(ii) are regarded as strike crimes since California law defines them as serious and violent offenses.
Consequently, if the offender is convicted of Penal Code 288.5(i) or any one of the related offenses under Penal Code 288(a), they will receive a strike and face harsher punishments for any future felonies they commit (California Penal Code 1192.7 and 667.5).
Immigration-Related Issues
Recurrent child sexual abuse is a serious offense that entails significant moral consequences. If the accused goes to prison for more than one year, the offense is also regarded as an "aggravated felony."
Any non-citizen found guilty of Penal Code 288.5(i), even permanent residents, could be deported back to their native country and barred from returning after serving their prison term.
Professional Licenses
When an accused is convicted of violating California Penal Code section 288.5(a), their professional license will almost certainly suffer negative repercussions. These may include suspension, revocation, or other forms of punishment.
This rule applies to all Board, Bar, as well as Commission members, comprising medical professionals and other professionals such as lawyers, counselors, nurses, teachers, dentists, therapists, and cosmetologists.
Restitution and Penalty Fines
A defendant can be fined a maximum of ten thousand dollars if found guilty of violating the provisions of California PEN 288.5(a). Additionally, if convicted of violating PEN 288.5(a), the accused could be required to pay back the state for the costs associated with booking and other court fees. If the victim can show that he/she had any medical or therapy expenses as a result of the incident, then restitution would be required.
Restraining Orders
If the offender is convicted of sexual abuse of a minor (PC 288.5(a)), they would be prohibited from contacting any of the specified victims or, in some cases, their families. Defendants facing time in jail for PC 288.5(a) violation can also be barred visits from their victims while in custody. This also applies if the alleged victim is a family member of the offender.
Child Protective Services (CPS) Concerns
When an individual is charged with PC 288.5(a) or another type of child assault or sexual offense, the child could be taken away from the residence while the criminal proceedings are being investigated. CPS will also take any remaining child from the defendant's residence, and the accused's name would be added to the Child Abuse Central Index (CACI).
How You Can Defend Yourself Against PC 288.5 Charges
If you are accused of continuous sexual abuse of a minor, your criminal defense attorney will carefully review all of the facts to identify the best defense plan. Every situation is different, but here are several common defenses you can use:
Lack of Recurring Access
Note from the elements of the offense section that the prosecution needs to demonstrate regular and consistent access to the child. Perhaps you can argue that this requirement was not achieved, and thus you cannot be convicted of a continuous sexual abuse offense.
Insufficient Evidence
You could argue that the case isn't strong enough to be proven by the submitted evidence. For instance, there could have been physical contact, but it was not sexual. Remember that the prosecution should demonstrate that the child was touched with sexual intent.
Additionally, your lawyer can contend that there's inadequate proof that you engaged in 3 actions of sexual intimacy in the last three months. You could stand a fair chance of evading conviction if your attorney can successfully raise doubts about this serious issue.
False Allegations
Sometimes, a minor would fabricate false claims for reasons like anger or vengeance. Perhaps the child was instructed by another individual, like an ex-spouse, to fabricate the charges as part of a child custody dispute. A child can exaggerate what truly occurred.
You Were Intoxicated
Voluntary intoxication could be a defense strategy if the drunkenness is severe enough that the accused does not distinguish between right and wrong or the quality or nature of his/her actions.
Coerced Confession
Any confession made by an offender that is later shown to have been coerced by law enforcement authorities can be suppressed, meaning the prosecution cannot use it to support the case's prosecution. Unauthorized recordings can also be withdrawn and considered inadmissible in court.
Insanity
The insanity defense can be used if, at the moment of the offense, the offender suffered from a mental illness or impairment severe enough to prevent them from appreciating the nature and significance of the action they are performing at the time the crime was committed or from distinguishing right from wrong.
Related Charges
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Lewd Actions With a Child
If the prosecutor believes there is sufficient evidence to prosecute you with each incident of illegal contact with a child over a long period, or if there is no trend of illegal contact, you can be accused of lewd actions with a child.
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Oral Sex With a Child
It is prohibited under California law to have sexual intercourse with any person under the age of 18. If it is discovered that a person has oral sexual contact with a minor, they could be convicted of oral copulation with a child.
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Sexual Activities With a Minor Under the Age of Ten - PC 288.7
Provisions of California PC 288.7 punish an individual with sexual relations with a minor under ten years old. Even a first-time conviction for a sex crime under this clause leads to life imprisonment.
FAQs about Continuous Sexual Abuse of a Child
The following are some frequently asked questions about continuous sexual abuse of a child.
Can I Still Be Found Guilty If There's No Physical Proof That The Minor Was Sexually Abused Continuously?
Yes, you could be found guilty based only on the testimonies or statements of the purported victim and other witnesses. However, a competent lawyer could be able to dispute these claims.
Can a Family Member of the Purported Victim Be Accused of Continuous Sexual Abuse of the Minor?
Yes, regardless of whether the victim's child is a member of your family, you could be held accountable for the crime. Most sex offenses against minors are perpetrated by individuals the victim knows, often a family member or a friend.
Would I Be Permitted to Speak With the Minor While the Issue is Still in Court?
Usually, the court will require you to comply with a criminal protective order. This bans you from reaching out to the victim.
What Happens to My Custody Rights If I Have Been Accused of Child Abuse as the Child's Parent?
While the case continues, the other child's parent will most likely request that the family law court terminate your custodial and visitation rights. A criminal protective order prohibits you from having any contact with the child while the ongoing criminal case is most likely to be issued. The family law court would determine your child's visitation and custodial rights after the case is concluded, as well as after the criminal protective order is withdrawn.
Can I Be Deported If I Continue to Sexually Abuse Minors?
Yes, you should speak with a skilled criminal defense lawyer who has experience defending immigrants charged with serious felonies as soon as possible.
Can a Conviction Be Expunged?
A person who has been found guilty of continuous sexual abuse of a minor is unlikely to be granted expungement. Expungements are banned by law if an offender is sentenced to prison. This is in contrast to time spent in jail. The criminal case is unlikely to be expunged because PC 288.5 offenses carry a prison term.
Does a Conviction Affect My Firearm Rights?
If an individual is found guilty of "continuous sexual abuse of a child," their right to carry or use a weapon would be adversely affected.
According to California law, offenders cannot:
- Purchase a weapon.
- Carry a firearm.
- Possess a firearm.
Since violations under these provisions are considered felonies, they revoke an accused's gun ownership rights.
Find a Los Angeles Criminal Defense Attorney Near Me
Child molestation allegations in California are treated seriously. Spending time behind bars can cost you your entire life, and being labeled a sex offender can haunt you for the rest of your lifetime.
It is crucial to start putting together your case as soon as possible if you or a loved one is facing charges of child molestation.
Even minor allegations can turn into major charges, so you should be as prepared and ready to protect your freedom. Call The Los Angeles Criminal Defense Attorney today at 310-564-2605 for a free and private consultation so that we can help defend you.
