Generally speaking, any sex crime allegation against a minor or children is a severe matter that could land you in jail for several years upon conviction. Even if the prosecutor did not file formal charges against you, allegations that you are a suspect in any sex crime against a minor could ruin your reputation and professional life.

Unfortunately, false allegations in these types of cases are not uncommon. If you or your loved one has been charged with or is under arrest for the crime of continuous sexual abuse of a child under Penal Code (PC) 288.5, his/her freedom will depend on the aggressiveness of the attorney he/she chooses.

Ensure you have a profound and skilled attorney ready to challenge the alleged violation aggressively for the best possible outcome.

Prosecution Elements for the Alleged PC 288.5 Violation

According to PC 288.5, you commit the offense of continuous sexual abuse of a child when you commit or engage in three (3) or more instances of substantial sexual conduct against a child under 14 within three months.

For a PC 288.5 violation conviction, the burden of proof will be on the prosecutor presiding over your case. Like any other sex crime against a minor, the prosecutor will leave no stone unturned when seeking a conviction against you for the alleged PC 288.5 violation. Here are the elements he/she must prove beyond a reasonable doubt to secure a conviction against you under PC 288.5:

You Shared a House or Had Regular Access or Contact with the Alleged Child

The first element the prosecutor must prove to obtain a conviction against you for the alleged charge is that you lived, shared a home, or had regular access to and contact with the child in question. For instance, if you are a teacher or sports coach of the child in question, the prosecutor could argue that you had regular or reoccurring contact with him/her for a PC 288.5 violation conviction.

You Engaged in Substantial Sexual Conduct or Lewd Conduct With the Child on Three Past Occasions

PC 288.5 criminalizes ongoing sexual acts against a child. To secure a conviction against you for a PC 288.5 violation, the prosecutor will have a legal burden to prove that you did engage in substantial or specific sexual or lewd conduct with the child in question (victim) on three past occasions. Substantial sexual conduct or contact under this statute means:

  • Masturbation or oral copulation of either you, the defendant, or the victim.
  • Penetration of your rectum or vagina or that of the victim using a penis or foreign object.

Conversely, lewd conduct means you did touch the victim with the mental intent of sexual gratification or arousal. However, your arousal or the child's arousal is not a requirement for a conviction for the alleged violation. That means you could be guilty of a PC 288.5 violation even if you did not achieve your sexual arousal or gratification intentions during or after the act.

Three Months are Over Since Your First Act of Sexual Abuse and the Last Act of Abuse

PC 288.5 also requires the prosecutor to prove that at least three months are over since your first sexual contact with the victim and the last contact for a conviction.

The Child in Question Was Aged 14 or Below at the Particular Time of the Alleged Sexual Conduct With Him/Her

The final element necessary for a PC 288.5 violation conviction is that the victim was fourteen years or below when you did the alleged sexual conduct or contact with him/her.

If the prosecutor's available evidence and arguments cannot satisfyingly prove the above elements or facts of the crime beyond a reasonable doubt, the court will not convict you for the alleged violation.

Penalties for Continuous Sexual Abuse of a Child Conviction Under PC 288.5

If you are guilty of a PC 288.5 violation, your case will proceed to the sentencing phase to decide the appropriate sentence or penalties suitable for your conviction. Here are the legal penalties to expect upon a conviction for a PC 288.5 violation:

  • Jail Term – A conviction for a PC 288.5 violation is a felony, carrying a jail term of six (6), twelve (12), or sixteen (16) years.
  • A fine – Like any other sex crime, a guilty verdict for the alleged violation will attract a fine. Upon a conviction for a PC 288.5 violation, the court will require you to pay a fine not exceeding $10,000.
  • Felony probation – Instead of serving your sentence behind bars, you could qualify for a felony probation sentence. Whether you will be eligible for this alternative sentence will depend on your criminal history and the unique facts of your conviction.

Other Collateral Consequences of a PC 288.5 Violation Conviction

Unfortunately, most sexual crimes, including a PC 288.5 violation, carry other collateral lifelong consequences that could impact your life negatively after serving the above standard sentence. Some of these consequences include the following:

Inclusion in the Sex Offender Registry

One of the most severe and life-changing collateral consequences of a PC 288.5 violation conviction is inclusion in the sex offender registry. A sex offender registry is an online national database that keeps details of convicted sex offenders to allow law enforcement agencies to track their activities and whereabouts.

According to PC 290, inclusion in the sex offender registry will require you to register with a local law enforcement agency every year within five days of your birthday or five days after changing residence. Registration typically means keeping law enforcement authorities informed about your whereabouts as long as you work, live, or attend school.

A Strike Under the Three Strikes Law

A PC 288.5 violation conviction is a serious crime under the three strikes law, meaning it qualifies as a strike on your record. The three strikes law under PC 667 is a sentencing scheme that requires convicted defendants to be sentenced to up to 25 years or life in prison if they have prior convictions for severe felonies or serious offenses like a PC 288.5 violation.

Immigration Issues if You are a Non-Citizen

A PC 288.5 violation qualifies as a crime involving moral turpitude because it involves depraved or vile conduct or behavior that is surprising and shocking to a sober and reasonable person. If you are a non-citizen or alien and are guilty of a PC 288.5 violation, you should expect some immigration consequences, including deportation and being marked inadmissible.

Once you are marked inadmissible, you will not qualify to re-enter the country again after leaving, even if you are a lawful immigrant. Additionally, being inadmissible means you will not qualify to receive benefits from the immigration authorities, including adjustment of your legal immigration status if you are here unlawfully.

Loss of Your Gun Rights

A conviction for the alleged crime will negatively affect your gun rights because it is a felony. According to PC 29800, it is unlawful for convicted felons to do the following:

  • Purchase a firearm.
  • Receive a firearm.
  • Own, possess, or control a firearm.

Fortunately, you could have your gun rights restored by requesting a governor’s pardon. Although it is challenging to obtain this pardon, the process begins by filing for a Certificate of Rehabilitation (COR).

Loss of Professional Licenses

A PC 288.5 violation conviction can attract negative repercussions on your occupational or professional licenses, including suspension, revocation, and disciplinary actions. That is true, especially if you are a lawyer, nurse, therapist, doctor, dentist, or teacher.

Even if you have not obtained your professional license yet, a criminal record for a PC 288.5 violation conviction can affect your eligibility to acquire one, significantly affecting your future career plans.

A Restraining Order Against You

The court will issue a restraining order against you, prohibiting you from contacting the victim and his/her family. If you are serving your sentence in prison, the court could also deny visits by the victim's family member(s).

Pay Restitution or Compensation to the Victim

If the child or his/her family proves that they had a therapist or doctor's bills after the sexual contact with the child, the court could require you to pay the necessary restitution. The restitution you pay will vary, depending on the total amount the victim or his/her family had to use for his/her treatment or therapy after sexual abuse.

Child Protective Service (CPS) Issues

If you are the parent or guardian of the alleged child, the CPS agency could require him/her and other children out of your home as the alleged case continues. The CPS agency could make this order even if the prosecutor has not yet filed formal charges against you for the alleged PC 288.5 violation.

Common Defenses Applicable to Challenge the Alleged PC 288.5 Violation

There are several ways that a seasoned and skilled defense attorney can successfully challenge the alleged PC 288.5 violation for the best attainable outcome. Your attorney will examine your case keenly to determine the suitable defenses that will work in your favor for a desirable outcome on the alleged violation.

Depending on the unique facts of the alleged violation, your defense attorney can argue that:

  1. The Involved Child Was Above 14 Years at the Time of the Alleged Offense

Recall that you are only guilty of a PC 288.5 violation if the involved child was under 14 years of age at the time of the offense. To that end, it is acceptable for your attorney to argue that the involved child was older than 14 years for dismissal of the alleged PC 288.5 violation or a lighter charge. Acceptable evidence to support this argument includes:

  • The victim's birth certificate.
  • The victim's driver's license.

  1. There Was No Sexual Act Between You and the Child

PC 288.5 only criminalizes any sexual conduct or contact with children. Therefore, having physical contact with the child is not illegal under this statute. Your attorney can argue that you did come into bodily contact with the child but not in a sexual way, meaning there was no sexual contact between you and him/her.

For instance, innocently patting or touching a child on his/her head when saying hello is not unlawful under this statute. If the judge finds this defense reasonable, he/she could drop or reduce the alleged PC 288.5 violation to a lighter charge.

  1. You Were Falsely Accused

Unfortunately, this is an area of law ripe for false accusations. A child can falsely accuse you of violating PC 288.5 for several reasons, including:

  • His/her parent or ex-wife coached and trained him/her to make up a false allegation to gain an advantage over you in a child custody battle
  • The child was jealous or angry
  • The child lied to the law enforcement authority to have you out of his/her home.

Regardless of the motive or reason, it is a reasonable defense to argue that you are a victim of false accusations to obtain the best possible outcome on the alleged violation.

  1. There Was No Recurring Contact or Access to the Child

You are only guilty of the alleged violation if you lived with the involved child (victim) or had regular contact with or access to him/her. If your attorney can prove beyond a reasonable doubt that you did not live with or have regular contact with the involved child, the court will drop the alleged PC 288.5 violation.

However, the prosecutor could still file other related sex crimes against you if there is sufficient evidence for the charge to stand trial.

  1. There is Insufficient Evidence Against You

For the alleged PC 288.5 violation conviction, the prosecutor must have sufficient evidence to prove all the elements and facts of the crime to a jury or judge beyond a reasonable doubt. If your attorney can raise a reasonable doubt about the strength of the prosecutor's case against you, the court could reduce or drop the alleged PC 288.5 violation.

Other potential and viable defenses to the alleged PC 288.5 violation include the following:

  • There was misconduct by the arresting law enforcement officer, for example, coerced confession.
  • There was a mistake of fact in the alleged crime.
  • An involuntary intoxication triggered you to commit the alleged offense.
  • You were legally insane at the time of the alleged act, meaning you did not understand the nature of the alleged act or did not know it was unlawful.

It was worth noting that consent is not a defense for a PC 288.5 violation because minors (any person aged below 18) are legally incapable of giving consent.

Offenses Related to the Alleged PC 288.5 Violation

The prosecutor presiding over your case could file a variety of related offenses against you if his/her evidence is insufficient to prove to the court that the allegations you are facing are true. Some of the most common crimes related to the alleged PC 288.5 violation include (but are not limited to) the following:

  • Oral copulation with a minor under PC 287.
  • Lewd acts with a child under PC 288.7.
  • Lewd acts with a minor under PC 288.
  • Statutory rape under PC 261.5.
  • Child molestation under PC 647.6.
  • Sexual penetration with a foreign object under PC 289.

The above-related offenses share similar facts or elements that the prosecutor must prove at trial for a conviction under PC 288.5. The related offense the prosecutor will file against you will depend on the details and circumstances of your unique case.

Bottomline

All sex crimes against children and minors are severe offenses in the eyes of the law. Fortunately, working with an attorney could make a significant difference between incarceration and dismissal of the alleged PC 288.5 violation.

For increased chances of obtaining the best possible outcome on the alleged PC 288.5 violation, hiring a skilled attorney with significant experience in the legal justice system is a brilliant idea. An attorney who understands how judges treat these kinds of crimes can help you obtain a dismissal of the alleged PC 288.5 violation or a reduced charge. Aside from being experienced, ensure the attorney you will hire is:

  • Credible and reputable.
  • Available and accessible.
  • Legally licensed.

Find a Reliable Los Angeles Criminal Defense Attorney Near Me

Our skilled defense attorneys at The LA Criminal Defense Law Firm are standing by, ready to offer you the necessary legal help as you face the confusing and complex legal justice system. We will have the alleged PC 288.5 violation moving in the right direction as soon as you talk to us about the best possible outcome, including case dismissal or a reduced charge.

Call us at 310-935-1675 for an immediate evaluation of the alleged crime by our skilled and seasoned attorneys, wherever you are in Los Angeles.