Arrested for Continuous Sexual Abuse of a Child (Penal Code § 288.5) in California?

If you’ve been arrested for continuous sexual abuse of a child under California Penal Code § 288.5, you’re facing one of the most serious criminal charges in the state. This law is designed to address ongoing sexual abuse of children, and the penalties are appropriately severe.

Before making any statements or decisions, you need to understand exactly what these charges mean, the potential penalties you’re facing, and the defenses that may be available to you.

What is Penal Code § 288.5?

California Penal Code § 288.5 criminalizes the continuous sexual abuse of a child. The statute states:

“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 under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.”

Key Elements of § 288.5 Charges

To secure a conviction under § 288.5, the prosecution must prove several elements beyond a reasonable doubt:

1. You either resided in the same home as the minor child or had recurring access to the child.
2. Over a period of at least three months, you engaged in three or more acts of either: a) Substantial sexual conduct with a child under 14, or b) Lewd or lascivious conduct with a child under 14.
3. The child was under 14 years old at the time of the offenses.

It’s important to note that the jury doesn’t need to agree unanimously on which specific acts occurred, only that the requisite number of acts took place.

What Constitutes “Substantial Sexual Conduct”?

Under California law, “substantial sexual conduct” is defined in Penal Code § 1203.066(b) as:

1. Penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object.
2. Oral copulation or sexual penetration, as defined in Section 289, of either the victim or the offender.
3. Masturbation of either the victim or the offender.

What Constitutes “Lewd or Lascivious Conduct”?

“Lewd or lascivious conduct” is defined in Penal Code § 288 as any act upon or with the body of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of either the perpetrator or the child.

Penalties for § 288.5 Violations

The penalties for violating Penal Code § 288.5 are severe. If convicted, you face:

• Imprisonment in state prison for 6, 12, or 16 years
• A fine of up to $10,000
• Mandatory registration as a sex offender for life

It’s important to note that this offense is always charged as a felony and is considered a “strike” under California’s Three Strikes law.

Additional Consequences

Beyond the immediate legal penalties, a conviction under § 288.5 can have far-reaching consequences:

1. Sex Offender Registration: You’ll be required to register as a sex offender for life, which can severely restrict where you can live and work.
2. Immigration Consequences: For non-citizens, a conviction could lead to deportation or inadmissibility.
3. Professional Licenses: Many professional licensing boards will revoke licenses upon conviction of this offense.
4. Employment: A conviction will make it extremely difficult, if not impossible, to find employment, especially in fields involving work with children.
5. Housing: Many landlords refuse to rent to registered sex offenders.
6. Child Custody: A conviction will likely result in loss of custody or visitation rights with your own children.
7. Reputation: The stigma associated with these charges can be devastating and long-lasting, affecting all aspects of your personal and professional life.

Legal Defenses for § 288.5 Charges

If you’re facing charges under Penal Code § 288.5, several legal defenses may be available:

1. False Accusation

Unfortunately, false accusations do occur, especially in cases involving children. These can arise from misunderstandings, coaching by adults, or even malicious intent. A skilled defense attorney can investigate the circumstances and potentially uncover evidence of a false accusation.

2. Insufficient Evidence

The prosecution must prove every element of the crime beyond a reasonable doubt. If there’s not enough evidence to meet this high standard, you should not be convicted.

3. Lack of Recurring Access

If you did not reside with the child or have recurring access, an essential element of the crime is missing.

4. Time Period Less Than Three Months

If the alleged acts occurred over a period of less than three months, this charge does not apply (though other charges might).

5. Child Was 14 or Older

If the child was 14 or older at the time of the alleged acts, this specific charge does not apply (though other charges might).

6. Constitutional Violations

If your constitutional rights were violated during the investigation or arrest, certain evidence might be suppressed.

7. Statute of Limitations

While the statute of limitations for this offense is generally quite long, if too much time has passed since the alleged offense, you may have a defense.

The Legal Process for § 288.5 Charges

Understanding the legal process can help you prepare for what’s ahead:

1. Investigation: Law enforcement gathers evidence, often including interviews with the alleged victim and witnesses.
2. Arrest: If there’s probable cause, an arrest is made.
3. Booking: You’re photographed, fingerprinted, and your personal information is recorded.
4. Arraignment: You appear in court to hear the charges and enter a plea.
5. Bail Hearing: The judge decides whether to grant bail and sets the amount.
6. Preliminary Hearing: The prosecution must show there’s enough evidence to proceed to trial.
7. Pretrial Motions: Your attorney may file motions to suppress evidence or dismiss the case.
8. Plea Bargaining: Sometimes, a plea deal may be negotiated.
9. Trial: If the case goes to trial, both sides present evidence and arguments to a jury.
10. Verdict: The jury decides whether you’re guilty or not guilty.
11. Sentencing: If found guilty, the judge determines the sentence.

What Most People Don’t Know About § 288.5 Charges

1. Single Count Rule: Generally, only one count of continuous sexual abuse can be charged, unless there are multiple victims.
2. No Other Sexual Offense Charges: The law prohibits charging other sexual offenses involving the same victim during the same time period, except as alternatives.
3. Jury Agreement: The jury only needs to agree that the requisite number of acts occurred, not on which specific acts.
4. No Lesser Included Offenses: Courts have held that there are no lesser included offenses to § 288.5.
5. Impact on Other Cases: A conviction under this section can be used as evidence in family court proceedings.
6. No Time Off for Good Behavior: Those convicted under this statute must serve at least 85% of their sentence before being eligible for parole.
7. Civil Commitment Possible: After serving the prison term, some offenders may be subject to civil commitment as a sexually violent predator.

Frequently Asked Questions

Q: Can I be charged if the alleged acts occurred more than 10 years ago?

A: Possibly. The statute of limitations for this offense is complex and has changed over time. In some cases, there may be no time limit for bringing charges.

Q: What if the alleged victim recants?

A: While helpful, a recantation doesn’t automatically end the case. Prosecutors may still proceed if they believe they have enough evidence.

Q: Can I be charged if I’m no longer living with or have access to the child?

A: Yes. The law applies based on your situation at the time of the alleged offenses, not your current circumstances.

Q: Will I have to register as a sex offender if convicted?

A: Yes. Conviction under § 288.5 requires lifetime registration as a sex offender.

Q: Can these charges be expunged from my record?

A: Generally, no. Convictions for continuous sexual abuse of a child are not eligible for expungement in California.

Why You Need an Experienced Defense Attorney

Given the complexity of § 288.5 cases and the severity of potential penalties, it’s crucial to have experienced legal representation. An experienced attorney can:

• Protect your constitutional rights throughout the process
• Conduct an independent investigation
• Challenge the prosecution’s evidence
• Negotiate with prosecutors for reduced charges or penalties
• Represent you effectively in court
• Help minimize the long-term consequences of these charges

When choosing an attorney, look for someone with specific experience defending against § 288.5 charges, a track record of success in sex crime cases, and someone you feel comfortable discussing sensitive details with.

How The Nieves Law Firm Can Help

At The Nieves Law Firm, we understand the gravity of § 288.5 charges and the impact they can have on your life. Our experienced criminal defense attorneys are committed to providing aggressive and strategic defense for our clients.

We offer:

• Free initial consultations
• On staff private investigator
• Emergency phone line
• Multilingual services
• A team approach to your defense
• Extensive experience in sex crime cases

We’ll investigate your case, challenge the evidence against you, and fight for the best possible outcome. Our goal is to protect your rights, your freedom, and your future.

Don’t face these serious charges alone. Contact The Nieves Law Firm today for a confidential consultation. Remember, an arrest is not a conviction, and there are defenses available. Let us help you navigate this challenging time and work towards the best possible resolution for your case.