Posted on August 5, 2015

California Penal Code § 288.5: Continuous Sexual Abuse

Any sex crime allegation, including continuous sexual abuse of a minor child, are serious accusations that must be delicately handled and investigated. Mere sex crime accusations can be enough to destroy someone’s reputation and friendships even if no charges are ever filed against you. Being accused of continuous sexual abuse of a child is very serious and one should retain a criminal defense lawyer at the earliest juncture. This crime is a “strike” offense applicable to California’s Three Strike Laws, requires mandatory lifetime sex offender registration, and a substantial amount of time in state prison if convicted. In addition, the district attorney’s office usually assigns a specialized sex crimes prosecutor against you to ensure that these offenses are aggressively handled.

Law Enforcement Investigation

When a complaint is filed at the police department, the case is then assigned to a sex crimes investigating detective. The detective will run a database search to determine if anyone has filed a complaint against you in search of additional victims. If the detective discovers additional victims. Law enforcement usually questions your friends, family, colleagues, and even work employees to investigate your character and in search of additional victims. At this point, you haven’t been arrested yet and your reputation is nearly destroyed by simple accusations. Furthermore, most detectives contact the suspect in an effort to get their side of the story. This is merely a fishing expedition on part of the detective to get you to make an incriminating statement to build a case against you. If law enforcement is attempting to contact you to make a statement, decline to say anything without the presence of a lawyer. And finally, expect the detective to request that you take a polygraph test to determine the validity of your side of the story in the event you spoke to police without a lawyer. Decline to take a polygraph test and remain silent. At this point, the detective has collected all the evidence in the case and drafts a warrant to search your home computer, cellular telephone, residence, vehicle, and even storage units. Once the detective believes there is enough evidence against you, the case is submitted to the district attorney’s office for formal review in determining whether formal charges should be filed against you.

Continuous Sexual Abuse Formally Defined

In California, continuous sexual abuse of a minor under the age of 14 is formally defined under Penal Code § 288.5 which provides, “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, or three or more acts of lewd or lascivious conduct with a minor child under the age of 14 years at the time of the commission off the offense is guilty of continuous sexual abuse.”

Elements of the Crime

In order for someone to be found guilty of continuous sexual abuse on a child under the age of 14, the prosecutor must prove each element beyond a reasonable doubt:

1. Defendant lived in the same home or had recurring access to the minor child

2. Defendant engaged in three or more acts of substantial sexual contact 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

For the purpose of this charge, substantial sexual conduct under CALCRIM means “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.” Note that consent of the minor child is not a legal defense and the defendant need not harbor the intent to take advantage or harm the minor child.

Legal Defenses

• You did not have “recurring” access to the minor child

• You did not commit “substantial sexual acts” with the child as required

• You did not commit three acts of sexual conduct with the child

• Less than three months passed between the sexual acts with the minor

• The child was over the age of 14 years old

• The alleged victim is fabricating or exaggerating the circumstances against you

• A substantial amount of time has passed prejudicing your right to due process

Penalties

If convicted of continuous sexual abuse on a child under the age of 14, punishment includes: 6, 12, or 16 years in state prison. In addition to a lengthy custody sentence, the court will order you to publicly register as a sex offender for life.

Los Angeles Defense Investigation

Sex crime accusations require nothing less than a full factual investigation of the circumstances including the background of your accusers. The Law Offices of John D. Rogers has access to a number of defense investigators that will investigate the background of each witness the prosecutor intends to call, as well as search for additional evidence or witnesses the police missed or omitted completely. All evidence, especially communications, between you and the accuser is relevant to build a defense to the charges against you. This includes, and not limited to:

• Names and location of potential witnesses
• Phone records, text messages, facebook posts/messages
• Alleged victims history of crime, false accusations, lying
• Alleged victims mental illnesses
• Alleged victim’s medical records
• All evidence tending to show the victim is motivated to exaggerate or lie

Related Offenses

P.C. § 288a: Lewd Acts with a Child Under 14
P.C. § 243.4: Sexual Battery
P.C. § 261: Rape

Contact Us for a Free Consultation

If you have been accused, arrested, charged, or under investigation for continuous sexual abuse on a minor then contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers. Call 877-888-9820 for a free confidential consultation concerning your rights and defenses.

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