Continuous sexual abuse of a child is a violation of California Penal Code section 288.5. 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;
4. The child was under the age of 14 years at the time of the acts.
Under California law substantial sexual conduct Is defined as 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. Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child. 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.
Cases in which the offender lives in the home with the victim are often not disputed as to the first element of the crime. However, offenders who live separately from the victim present a more difficult case for the purposes of establishing the required access to a minor child under the law. Recurring access to a minor child is often found in the case of relatives or friends of the minor’s parents or guardians who visit the home frequently for purposes other and engaging in an illicit relationship with the minor child. For example, a single mother’s long time boyfriend who visits the family home where the minor child resides on weekends and is considered to have a relationship with the family engages in sexual intercourse with the minor child on five different occasions over a 4 month period will likely be found guilty of continuous sexual abuse of a minor. In this case, a different multiple charges may be appropriate such as statutory rape or lewd acts with a child. In a different scenario a person who is not acquainted with the family has an ongoing sexual relationship with the minor child over the same period of time will likely not be found to have the required access to the minor child. This is because the relationship with the child is confined only to the illicit contact and not by virtue of having continued access to the child.
A violation of Penal Code 288.5 is a felony. Upon conviction, the Court has the discretion to impose a sentence of either 6, 12 or 16 years in prison. Further, a conviction under Penal Code 288.5 is considered strike under the California three strikes law. In addition to the term of imprisonment, a convicted offender must register as a sex offender for life.
It is not a defense that the child may have consented to the act; however, a charge of continuous sexual abuse of a child can be challenged based on whether or not the incident occurred or that of mistaken identity. Although false reporting of incidence does occur the primary basis of a defense is likely to hinge on the identity of the offender and what type of conduct occurred, which will likely be the product of testimony from the alleged victim and sources of circumstantial evidence.
Given the high risk involved with a continuous sexual abuse of a child charge, it is important to seek experienced counsel if you are the subject of an investigation or are detained by law enforcement. Regardless of whether or not the case proceeds to trial, the seriousness of a California continuous sexual abuse of a child charge requires the assistance of a skilled and committed California criminal lawyer who knows every legal argument when defending clients.
If you have been arrested for the crime of continuous sexual abuse of a child in the Visalia, California area, contact an expert criminal lawyer as soon as possible to protect your legal rights.
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