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

Being charged with continuous sexual abuse of a child under California Penal Code § 288.5 is one of the most serious criminal allegations a person can face. This specific charge carries severe penalties including lengthy prison sentences and lifetime consequences.

If you’re facing investigation or charges under this statute, understanding its specifics is essential. David P. Shapiro Criminal Defense Attorneys has extensive experience defending clients against these grave allegations throughout San Diego County. Contact us immediately if you’re under investigation or have been charged – early legal intervention can make a critical difference in your case.

Continuous Sexual Abuse of a Child Under California Penal Code 288.5

California Penal Code § 288.5 was specifically created to address situations involving ongoing sexual abuse of children. Unlike other sex crime statutes that target individual incidents, this law recognizes the unique nature of continuing abuse patterns and the difficulties children may have in recalling specific dates of multiple incidents.

Key Elements of the Offense

For a conviction under PC § 288.5, prosecutors must prove beyond a reasonable doubt:

1. Relationship with the child: You either lived in the same home as the minor child or had recurring access to the child.
2. Time period: The abuse occurred over a period of not less than three months.
3. Multiple acts: You engaged in three or more acts of either:
   • Substantial sexual conduct with a child under 14, OR
   • Lewd or lascivious conduct with a child under 14.
4. Age of the child: The minor was under the age of 14 when the acts occurred.

All four elements must be established for a conviction. If any element cannot be proven beyond a reasonable doubt, you cannot be convicted under this specific statute (though other charges may still apply).

What Constitutes “Recurring Access” and “Residing in the Same Home”?

One critical element of PC § 288.5 involves your relationship to the child. The law specifically targets people who either:

Residing in the Same Home

This includes:

• Parents or step-parents
• Other family members living in the household
• Long-term house guests
• Roommates

Recurring Access

This broader category includes people who repeatedly interact with the child such as:

• Teachers or coaches
• Babysitters or childcare providers
• Family friends with regular contact
• Religious leaders
• Healthcare providers with ongoing treatment relationships
• Extended family members with regular visits

The “recurring access” element is meant to capture situations where a person has repeated opportunities to be alone with or have access to a child, creating conditions that enable ongoing abuse.

What Qualifies as “Substantial Sexual Conduct” and “Lewd Acts”?

The statute references two types of criminal conduct that can form the basis for a charge:

Substantial Sexual Conduct

As defined in PC § 1203.066(b), this includes:

• Oral copulation
• Penetration of the vagina or rectum by any foreign object
• Masturbation of either the child or the perpetrator

Lewd or Lascivious Acts

As defined in PC § 288, this includes:

• Touching any part of a child’s body (over or under clothing)
• Making a child touch the perpetrator’s body, another person’s body, or their own body
• Any touching done with the intent to sexually arouse the perpetrator, the child, or another person

A crucial distinction of PC § 288.5 is that prosecutors need only prove that three or more such acts occurred over the specified time period. They do not need to establish the exact dates or details of each incident.

The Unique “Continuous Conduct” Aspect of PC § 288.5

One of the most distinctive features of this law is how it addresses the challenge of prosecuting ongoing abuse. For most criminal charges, prosecutors must specify exact dates and details for each criminal act, and jurors must unanimously agree on each specific incident.

However, PC § 288.5(b) creates a significant exception: “To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.”

This means:

• Jurors must all agree that at least three acts occurred over at least three months
• Jurors do NOT have to agree on which specific three acts took place
• A child witness does not need to recall exact dates or specific details of each incident

This unique feature makes PC § 288.5 cases particularly challenging to defend against, as it was specifically designed to overcome common barriers to prosecuting ongoing child sexual abuse.

Penalties for Continuous Sexual Abuse of a Child

California imposes severe penalties for continuous sexual abuse of a child:

Prison Sentence

Conviction carries a state prison term of:

• 6 years, or
• 12 years, or
• 16 years

These are determinate sentences, meaning the judge selects one of these three specific terms at sentencing.

Additional Consequences

Beyond imprisonment, a conviction also results in:

• • Mandatory sex offender registration: Tier 3 lifetime registration under California’s tiered sex offender registration system
  • Strike under California’s Three Strikes law: Counts as a serious and violent felony
  • Fines: Up to $10,000 in fines
  • Restitution: Payments to the victim for counseling and other expenses
  • Loss of firearms rights: Permanent prohibition on owning or possessing firearms

• Immigration consequences: Likely deportation for non-citizens
• Civil commitment possibility: Potential for indefinite civil commitment as a Sexually Violent Predator after serving the prison term

Charging Limitations Under PC § 288.5(c)

The statute contains specific limitations on how charges can be filed:

1. Single count limitation: Generally, a defendant can only be charged with one count of PC § 288.5 per victim. Multiple counts require multiple victims.
2. Alternative charging restriction: Other sexual offenses involving the same victim cannot be charged alongside PC § 288.5 unless:
   • They occurred outside the time period charged under PC § 288.5, or
   • They are charged as alternatives (meaning the defendant can only be convicted of either PC § 288.5 OR the alternative charge, not both)

These provisions prevent prosecutors from “splitting” a continuous pattern of abuse into separate charges to increase potential penalties, while still allowing them to address conduct that falls outside the continuous abuse period.

Common Defense Strategies

Several defense approaches may be available depending on the specific circumstances:

Insufficient Evidence

Given the serious nature of the charge, the prosecution’s evidence must be thoroughly scrutinized. Potential weaknesses include:

• Lack of physical evidence
• Inconsistent statements
• Delayed reporting without reasonable explanation
• Absence of behavioral indicators commonly associated with abuse

False Allegations

Unfortunately, false accusations do occur, particularly in:

• Contentious custody disputes
• Family conflicts
• Situations involving suggestive questioning of children
• Cases where children have been influenced by adults with motivations to fabricate allegations

Failure to Prove Required Time Period

The prosecution must establish that the alleged abuse occurred over a period of at least three months. If this cannot be proven beyond a reasonable doubt, a PC § 288.5 conviction is not possible.

Alibi Defense

Evidence that you were not present or did not have access to the child during significant portions of the alleged abuse period can create reasonable doubt.

Challenging the “Recurring Access” Element

If you did not live with the child and did not have regular, repeated access, this element may be contestable.

Constitutional Violations

Evidence obtained through improper police procedures, coerced statements, or violations of your rights may be excludable.

The Investigation Process

Understanding how these cases are typically investigated helps in preparing a defense:

Initial Report and Disclosure

Most cases begin with a disclosure by the child to a parent, teacher, or other trusted adult, or through observations by mandatory reporters.

Forensic Interviews

Children are typically interviewed by specialists trained in child forensic interviewing techniques. These interviews are often recorded and may be conducted at specialized child advocacy centers.

Medical Examinations

Physical examinations may be conducted, although they frequently yield no conclusive evidence, especially when there is delayed reporting.

Corroborating Evidence Collection

Investigators seek evidence that may corroborate the allegations, such as:

• Electronic communications
• Witness statements
• Evidence of opportunity
• Physical evidence from scenes of alleged abuse
• Behavioral indicators documented by teachers, therapists, or others

Pretext Communications

In some cases, law enforcement may arrange “pretext” phone calls or messages where the alleged victim contacts the suspect while police record the conversation, hoping to elicit incriminating statements.

What Sets PC § 288.5 Apart from Other Sex Crime Charges

Several features make continuous sexual abuse charges distinct from other sex crimes:

Focus on Pattern Rather Than Individual Acts

Unlike most sex crime statutes that target specific incidents, PC § 288.5 recognizes patterns of behavior occurring over time.

Relaxed Unanimity Requirement

The unique jury unanimity provision makes these cases procedurally different from almost all other criminal charges.

Severe Sentencing Structure

With minimum sentences starting at 6 years and no option for probation, these cases carry some of the harshest minimum penalties in California’s criminal code.

Limited Charging Options

The restrictions on filing multiple related charges create a distinctive prosecutorial framework not found in many other criminal statutes.

Frequently Asked Questions

Can I receive probation instead of prison if convicted?

No. PC § 288.5 is one of the few crimes in California for which probation is expressly prohibited. A conviction guarantees a state prison sentence.

How is this charge different from multiple counts of child molestation?

PC § 288.5 addresses ongoing patterns of abuse and requires just three acts over three months without specifying exact dates. Individual molestation charges under PC § 288 would require prosecutors to prove specific incidents with much more detail and precision, with jurors unanimously agreeing on each specific act.

Does the statute of limitations apply to these charges?

Generally, prosecution must begin by the victim’s 40th birthday, or within one year of the victim reporting to California law enforcement (for victims born after January 1, 2000). However, various exceptions and extensions may apply.

What happens if the allegations involve multiple children?

Each victim can be the subject of a separate count under PC § 288.5, significantly increasing potential prison exposure.

Can these charges be reduced or dismissed?

While possible, reduction or dismissal is less common than with many other offenses due to the serious nature of the allegations and the specific prosecutorial policies many district attorneys maintain for child sexual abuse cases.

Why You Need Specialized Legal Representation

Continuous sexual abuse allegations demand specialized legal representation because:

1. Case complexity: These cases involve unique legal standards and evidentiary issues
2. High stakes: The mandatory minimum sentences and lifetime consequences are severe
3. Emotional challenges: The nature of the allegations creates intense emotions that require careful navigation
4. Specialized investigation needs: Effective defense often requires experts in child psychology, forensic interviewing, and medical evaluation

How David P. Shapiro Criminal Defense Attorneys Can Help

Our San Diego defense team brings crucial advantages to your case:

• Experience with sensitive cases: We understand how to navigate these difficult allegations with discretion
• Knowledge of forensic interviewing protocols: We can identify when improper techniques may have influenced a child’s statements
• Strategic approach: We develop comprehensive defense strategies tailored to your specific situation
• Access to expert witnesses: We work with psychologists, medical professionals, and other experts who can evaluate evidence and provide testimony
• Compassionate counsel: We provide support through what is undoubtedly one of the most difficult experiences of your life

We begin by conducting a thorough case evaluation, identifying all potential defenses, and developing a strategic plan tailored to your specific circumstances.

Contact a San Diego Criminal Defense Attorney Today

If you’re facing allegations of continuous sexual abuse of a child, immediate legal representation is essential. These cases move quickly, and early intervention can make a crucial difference in the outcome.

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.