Continuous sexual abuse of a child involves committing at least three sexual abuse acts against a minor below 14 years for three months or longer. In San Jose, sex offenses against minor children are aggressively prosecuted. If charged, you should retain a qualified criminal defense lawyer who will act in your best interests and aid you in exploring the available legal options to ensure your well-being and freedom. A conviction can negatively affect your life, career, family, reputation, and social standing in the community. Even false accusations can adversely change how people view you.

This article will teach you more about PC 288.5, its penalties, legal defenses, and what to do if charged with the crime. It will help you protect your constitutional rights and obtain the most favorable case outcome.

Defining Continuous Abuse of a Child

“Continuous sexual abuse is a “term of art,” and the law defines it differently from what you could think it means.

Under PC 288.5, the prosecutor must establish the following facts of the crime before convicting you:

  • You lived in the same house or have recurring access to a minor.
  • You engaged in at least three behaviors of substantial sexual conduct or lascivious/lewd acts with the minor.
  • More than three (3) months have passed between your initial and last conduct.
  • The juvenile was below 14 years when you committed the sex crime.

A child is any person younger than seventeen years.

This statute defines sexual conduct as:

  • Masturbation or oral copulation of either the defendant or the minor, or
  • Substantial sexual conduct.

PC 1203.066 defines substantial sexual conduct as:

  • Penetration of the perpetrator’s or the child’s rectum or vagina.
  • The penetration can be by a foreign object or another person’s penis.

On the other hand, oral copulation is any contact between the anus or sexual organ of another individual and one person’s mouth, regardless of how slight. Penetration does not have to be for oral copulation.

Recurring Access

The California Supreme Court defined “recurring access” as a continuing ability to repeatedly meet and interact with the minor.

When giving this definition, the court rejected a lower court ruling that recurring access was needed proving that the defendant has some degree of power over the juvenile and an affiliation with the minor separate and other than the sexual conduct in question.

Therefore, a person who repeatedly enters a teenager’s home without the juvenile’s parents’ knowledge and has oral copulation with the minor has recurring access to the teenager:

  • Even when the individual has no relationship or other conduct with the baby, and
  • Regardless of whether the child’s parents do not know the person entering their house.

Lascivious or Lewd Conduct

Lascivious or lewd conduct under PC 288a means touching a child's body part when over clothing or skin-to-skin intending to arouse, gratify, or appeal to the passions, sexual desires, or lust of either you, the defendant, or the child. The statute applies to any body part meaning the touching does not have to be the minor’s private areas like the breast area, sexual organs, or buttocks.

There are no requirements that the defendant aroused either the child’s or their passions, lust, or sexual desire. Also, you cannot use the minor’s consent to sexual behavior as a legal defense.

How the Jury Determines Whether the Sexual Conduct Was Continuous Abuse

If charged with an offense, you are entitled to a jury trial. This right means if the prosecution team presents proof of at least an act to establish that you violated the law, the juror cannot convict you unless:

  • all the twelve jury members agree that you engaged in more than one act, and
  • all the jurors agree on the specific act committed.

Unanimity rule application depends on how the California legislature defines a crime, mainly cases involving continuous offenses. In this case, how the legislature defines PC 288.5, the prosecutor can persuade some jury members that three specific acts happened.

Therefore, for instance, if some jurors think that you touched the minor’s breasts and others think that you touched the child’s anus, that could be enough to convict, provided all jury members agree that you touched the teenager more than thrice with sexual intent. Naturally, this makes it difficult to fight the charges because it permits the prosecutor to present proof of several different behaviors and does not require the juror to agree.

Penalties, Consequences, and Sentencing

If convicted of PC 288.5, you will face a felony. The offense carries a maximum of sixteen years in California state prison.

Three Strikes Law

If you have one previous strike on your criminal record and are later charged with a subsequent felony, you become a second striker. It means you will serve twice your typical maximum sentence for continuous sexual abuse of a child.

You become a third-strike defendant if you have two previous felony convictions and are later charged with another California felony. In this case, you risk serving 25 years to life imprisonment for the current criminal charge.

Adverse Immigration Consequences

Continuous sexual child abuse is a crime involving moral turpitude (CIMT) and has adverse immigration consequences.

An immigrant defendant guilty of this offense can be either marked as inadmissible or deported. Deportation means removal. On the other hand, being marked as inadmissible means you will not be permitted to re-enter the United States after leaving, even if you are a legal immigrant. It also means you are disqualified from receiving any benefit from the U.S. immigration authority, like an adjustment to legal immigrant status, even if you are here unlawfully.

Gun Rights

A conviction will also negatively affect your firearm entitlement.

California law bans a convicted felon from purchasing, possessing, or owning a gun.

PC 288.5 Conviction and Expungement

If convicted of this crime, you can expunge your criminal record. Expungements are not allowed if a person is subject to prison time.

An expungement eliminates almost all adverse consequences of a conviction, allowing the defendant to have a fresh start. That means it is easier for the defendant to secure future employment, educational, and housing opportunities.

Sex Offender Registration

A PC 288.5 conviction attracts lifetime sexual offender registration. Registration means you should always inform the law enforcement agency of your whereabouts, provided you attend school, work, or live in California.

To fulfill the initial reporting requirements under PC 290, you should register your address with the law enforcers within five (5) days of the:

  • release from police custody,
  • discharge from a mental institution or hospital, or
  • sentence,

depending on the earliest release into your community.

After the registration, the court will notify the California Department of Justice, which will monitor your reporting adherence.

You should update your information at least once a year within five days after your birthday. Additionally, the registration requirements will depend on other factors, like whether:

  • You relocate.
  • The judge deems you a sexually violent predator.
  • You are a transient.
  • You are employed by or enrolled at an institution of higher learning within the state.

Legal Defenses to PC 288.5

Despite the severe consequences of violating PC 288.5, you can fight the criminal charges with any of the following legal defenses depending on your case circumstances:

  • There was no child — You can also be convicted of this crime if you engaged in sexual behavior with a juvenile below fourteen. In other words, verifying that the alleged victim was older than fourteen is a defense.
  • No sexual act occurred — PC 288.5 only applies to sexual conduct with a juvenile. Innocent physical contact with a teenager is not illegal. That means you can fight charges by arguing that while you might have come into contact with the juvenile, it was not sexual conduct.
  • You can also use police misconduct, like law enforcers coercing a confession or conducting an illegal search and seizure, as your defense.
  • False accusations.

Related Offenses

Some of the child molestation crimes that can be charged alongside or instead of PC 288.5 include the following:

Lewd or Lascivious Acts with a Child

Under PC 288, it is an offense to touch a child or cause the minor to touch you or themselves for sexual purposes.

This statute applies when the alleged victim is below sixteen.

A conviction is a felony that carries three, six, or eight years in prison. The specific penalties depend on a combination of factors, including:

  • The child’s age.
  • Whether the lascivious conduct was accomplished by threats, duress, force, or violence.
  • Whether there was a pattern of lewd conduct.
  • If the alleged victim is fourteen or fifteen, the defendant’s age.

Lewd Acts With a Child by Fear or Force

PC 288(b)(1) makes it an offense to engage in lewd conduct on a child below 14 using fear of bodily injuries or force.

The crime is a felony that carries five, eight, or ten years in prison.

Sometimes the judge can impose a formal or felony probation instead of serving time.

A conviction also attracts lifetime sex offender registration.

Sexual Conduct With a Minor Below Ten Years

You violate Penal Code 288.7 when you engage in sexual penetration or intercourse, sodomy, or oral copulation with a baby below ten years.

A violation of this statute is a felony carrying a state prison sentence. When you are sentenced and receive a penalty of a set number of years in prison with the possibility of life imprisonment, you have to serve the number of years imposed. You can be released from detention only by a positive determination in a California Parole Board Hearing (lifer hearing).

Pre-filing Investigations for Continuous Sexual Abuse of a Child

The police investigate a police report of sexual abuse on a teenager and then forward them to the district attorney’s (D.A.) office for charge filing after completing the investigation. If you believe you are under investigation, it is crucial to understand how the police collect proof.

Interview With the Minor

First, a deputy from the law enforcement authority that took the initial report will interview the minor child. If the child or their parent reported the sexual abuse through a 911 call or at the police station, the deputy could not be assigned to handle the matter but is qualified to take the initial report.

Conducting a Forensic Interview

Typically, in cases involving children, law enforcers refer the matter for a forensic interview with a person trained and skilled in questioning victims of child sexual abuse. The interview goes into more detail about the nature of the abuse beyond the facts collected in the initial report.

Making Pretext Calls

One method of collecting proof is for police officers to ask the alleged victim’s loved one(s) to contact the defendant and get them to admit to committing the crime over text messages or phone calls.

Suspect Interviews

Law enforcers will interview you and attempt to get you to admit to violating the law. To achieve this, the law enforcers can lie to you. Typical tactics and tricks include making statements like:

  • “We have your DNA.”
  • “We know you committed the crime.”
  • “We just require to know why you committed the crime.”
  • “It is time to take accountability for your action so we can persuade the judge to reduce the severity of your penalties.”

Generally, these tricks cause a scared and inexperienced person to make incriminating admissions.

Steps to Take If Accused of PC 288.5

Being charged with a sex crime often results in criminal investigation and a referral to a child protection agency. The accusation can also lead to adverse consequences like the loss of employment, social stigma, loss of child custody, and criminal charges.

Your initial response to the allegations has significant and permanent effects on how the situation turns out. You should be careful of your steps, whether innocent or not. Here is what to do:

Relax and Understand Your Case

You could be angry, shocked, hurt, and frustrated when you first learn of your allegations. Instead, remain calm and relaxed. Take time to understand your criminal charges and the potential penalties.

Allow the realization carefully and rationally inform the right steps to take.

Avoid Contacting the Alleged Victim

While you could feel compelled to contact the juvenile to resolve the matter, there is no possibility doing so will assist. Cut all communication with the alleged victim and their loved ones.

It will lower the possibility of incriminating yourself. The teenager can claim that you threatened them if they have proof that you contacted them.

Do Not Give Any Statement

While you might want to defend yourself, the best thing is to remain silent.

Only talk to law enforcers with your defense lawyer present, and do not answer their questions. Answering the questions helps the police build a case against you. The police can use whatever you say against you in court.

While you should assure key individuals like your spouse, you should not go beyond that until you contact your attorney.

Contact Your Skilled Criminal Defense Attorney

Your sex defense lawyer is the best bet at fighting your accusations and obtaining a not-guilty verdict if your case proceeds to trial. With legal representation, you do not have to worry about revealing sensitive or confidential details that you believe can establish your innocence.

Your attorney-client relationship is confidential.

Collect as Much Evidence as Possible

The prosecution team should prove beyond a reasonable doubt that you violated PC 288.5 law. Nevertheless, it is wise to have proof in your defense. It could be witnesses, live GPS coordinates, and receipts.

Collect the evidence and present it to your sex defense lawyer. The legal professional knows how to use them to your advantage.

Why Do False Allegations of PC 288.5 Occur?

While sexual child abuse occurs, false allegations also happen. A false accusation can stem from deliberate lies or honest errors.

  • Misunderstanding — An accusation can occur when an adult misinterprets a juvenile’s description of something the defendant did or a minor misunderstands it. Sometimes the child may identify the wrong individual because the individual reminds them of the perpetrator.
  • An adult’s influence — A minor can make false accusations when a well-meaning person suspects sexual abuse and repetitively ask them if the suspect touched them inappropriately. Typically, children are vulnerable to the power of suggestion and want to please adults, so they can give the answers they believe the person wants to hear.
  • Perceived benefit — False accusations can also happen when a minor or an adult lies about the continuous sexual abuse of a child because they have something to gain. For instance, a child might seek vengeance against someone they believe mistreated them, like their stepparent, teacher, or coach.
  • Child custody battles and divorce — Moreover, false accusations arise in child custody and divorce battles. In this case, the individual with something to gain can take advantage of the juvenile’s openness and coach them on what to tell the police.

Contact a Competent San Jose Criminal Attorney Near Me

Continuous sexual abuse of a child is challenging to measure since much of the abuse in San Jose goes undetected and unreported. Consequently, California law imposes severe penalties, and it is crucial to seek quality legal representation. If prosecuted to the fullest extent of the law, you could serve more incarceration time, pay huge fines, and face the life-altering ripple effects of a conviction. The U.S. system of justice presumes you are innocent until proven guilty. The San Jose accomplished legal team at California Criminal Lawyer Group can defend your presumption of innocence using our experience and knowledge. Please call us at 408-622-0204 for a free consultation, and we will be glad to answer your questions and help you fight for your rights.