Child molestation is a felony in California. Depending on the facts of your case, it can lead to extensive prison times and lifetime registration as a sex offender.
How does it work?
The prosecuting attorney in a child molestation case has the option to choose which charges to bring against the defendant. If the defendant has been accused of illicit contact with a child over an extended period of time, the prosecutor can bring charges for each incidence of illicit contact.
However, in many cases, a child might not be able to remember the specific facts of each incident, which would make the prosecution’s job harder.
In these cases, the prosecutor can bring charges for “Continuous Sexual Abuse of a Child,” which is defined in California Penal Code 288.5 PC.
What is ‘Continuous Sexual Abuse of a Child?’
Continuous sexual abuse of a child occurs when a person:
- Lives with or has access to a person under 14 years old, and
- Over the course of 3 months or longer, commits 3 or more acts of:
- Substantial sexual contact, or
- Lewd acts
Under case law, access means that the defendant must:
- Have had an otherwise normal, existing relationship to the child prior to the alleged abuse (as a teacher, relative, coach, priest, etc.), and
- Be in a position of authority or power over the child, or in a position to otherwise command respect.
Substantial sexual contact is defined as masturbation of the child or defendant, oral copulation, or penetration of either party’s anus or rectum by a penis or foreign object.
Lewd acts on a child is willful touching of a child with the intent to sexually arouse him or her. In order to qualify as “lewd acts,” the touching does not need to be done in an overtly sexual manner, and it does not require that the touching be on bare skin.
How Is Continuous Sexual Abuse of a Child Prosecuted?
As we mentioned earlier in this article, if a child has trouble remembering dates, facts or details around specific incidents, it can make things difficult for the prosecutor to pursue specific charges related to each incident. This law (PC 288.5) was written as a way for the state to punish cases where there is a pattern of illicit behavior, but that some specifics may be unclear.
In order to prove continuous sexual abuse of a child, the prosecution does not need to prove the specific dates of each illicit incident. Instead, it simply must prove that the first and last dates of abuse spanned at least three months.
The prosecution must prove, beyond a reasonable doubt, that at least three acts of molestation took place. The jury does not have to agree on which three incidents took place, simply that at least three took place over the 3+ month period.
Let’s look at four different examples:
Example 1: Mike, 32, is a teacher and Lisa, 12, is in his class. Over the course of a six month school term, Mike engages in six acts of illicit touching with Lisa (one per month). Based on the testimony offered at trial, seven of the jurors agree that the first three acts took place. The other five jurors think that the final three acts happened. Because all 12 jurors agree that three acts took place, even though they disagree on which ones, they can render a guilty verdict.
Example 2: Tom, 18, is neighbors with Erin, 13. Over a period of four months, Tom sneaks into Erin’s house and engages in oral copulation with her. If Tom otherwise had no relationship with Erin — that he wasn’t in a position of trust or authority — it might not be possible to convict Tom under this law.
Example 3: Mindy, 40, is a day care worker for Dylan, 6. Over a period of five months, Mindy plays “doctor” with Dylan seven times, rubbing his penis over his clothes. Even though this situation was presented to Dylan as an innocent game and that the touching was done over his clothes, this could qualify as continuous sexual abuse of a child.
Example 4: Christine, 45, is the stepmother of Mike, 11. The prosecution claims that over a period of four months, Christine has coerced Mike into “fingering” her on six occasions. Based on the testimony in court, the prosecution is able to prove the first five incidents, which all happened in a two-month span. However, it cannot prove the sixth, which happened in Month 4. Because the prosecution can only prove a two month pattern of behavior, they could render a not guilty verdict. However, Christine could be charged with other crimes.
Penalty for Continuous Sexual Abuse of a Child
Under California 288.5 PC, continuous sexual abuse of a child is a felony. If you are convicted, the judge has the option to sentence you to 6, 12 or 16 years of prison time.
Upon your release, you will be required to register as a “tier three” lifetime sex offender.
What is ‘Lewd Acts With a Minor’?
If there was no pattern of illicit contact, or if the prosecution feels it has enough evidence to charge you for each incidence of illicit contact with a minor over a period of time, you’ll most likely be charged with “Lewd acts with a minor.”
Under Penal Code 288 PC, Lewd acts with a minor is defined as:
- Touching a child under 14 on any part of its body for the purposes of sexual gratification. This means that someone can be convicted of “Lewd acts” even if the touching was above the clothes or not on a genital area.
- A child under 16 touching someone else on their person for the purpose of the adult’s sexual gratification, on their urging.
Lewd acts with a minor is always treated as a felony in California, and the punishment depends on a number of factors in the case:
- The age of the child
- The age of the defendant
- If “force, fraud, threats or duress” were used
- If there was a pattern of abuse
In cases where no force is used, penalties include:
- Three, six or eight years in state prison
- Up to $10,000 in fines
When force is used, penalties rise to:
- Five, eight or ten years in state prison
- Up to $10,000 in fines
In addition to this, a conviction for lewd acts with a minor will add a strike to your record under California’s “three strikes” law. You will also be required to register as a tier-three lifetime sex offender on the California Sex Offender Registry.
What is Oral Copulation With a Minor?
It is illegal to have sex with anyone under 18 in California. In cases where a person is found to have had oral sex with someone 17 or younger, they can be charged with “Oral Copulation With a Minor.”
The penalty for oral copulation with a minor depends on the ages of the people involved. Less serious infractions can be tried as misdemeanors, which carry a maximum sentence of a year in county jail. Felony convictions can range up to 8 years.
In all cases, the person convicted will have to register as a sex offender in California.
What Is Oral Copulation With a Minor?
California law defines oral copulation as any contact between the mouth of one person and the sexual organs or anus of another person.
In other words, the simple contact between one person’s mouth and another person’s sex organs qualifies as oral copulation. Penetration or ejaculation/orgasm aren’t needed.
According to California law, a person is a minor up until the first minute of their 18th birthday, and it is a still a crime if the oral sex is consensual. Let’s consider these two situations:
Situation 1: Mike, 18, is dating Melissa, 16. While “fooling around” one night, Mike briefly kisses Melissa on the genitals with her consent. This is oral copulation with a minor.
Situation 2: Cindy, 19, is dating Tom, 17. For Tom’s 18th birthday, she decides to give him a “blow job.” It takes place at 12:02 a.m. This is not oral copulation with a minor.
In cases where the oral sex was not consensual, this can be tried under the more serious “Oral Copulation by Force or Fear” charges.
Late September 2020, California Governor Gavin Newsom signed AB-1145. This bill clarified that sexual assault does not include consensual anal or oral sex between minors unless the minor is 15 or younger and the other person 21 or older.
Penalty for Oral Copulation With a Minor
Oral copulation with a minor in California carries a maximum penalty of 8 years in prison as a felony or up to 1 year of county jail time as a misdemeanor.
It depends on the ages of the people involved:
- Under PC 288a, if the victim is 16 or older and the defendant is 21 or younger, this can be tried as a “wobbler,” meaning it can be a felony or misdemeanor. The maximum misdemeanor sentence is 1 year county jail time, while the maximum felony term for this is 3 years in state prison.
- If the victim is under 16 and the defendant is older than 21, this must be charged as a felony. The maximum sentence here is 3 years in state prison.
- If the victim is under 14 and the defendant is more than 10 years older than them, the maximum penalty now rises to 8 years in prison.
In all of these cases, the defendant is required to register as a sex offender in the State of California.
California Sex Offender Registry
California’s sex offender registry has three tiers, which require different lengths of registration:
- Tier 1: Misdemeanor cases of oral copulation with a minor fall into this category, as well as some felonies. This requires a minimum registration of 10 years on the California sex offender registry.
- Tier 2: This covers cases where the victim is younger than 14 and the defendant is more than 10 years older and there is no force. This requires a minimum registration of 20 years.
- Tier 3: This requires lifetime registration. This covers all situations where there is force, when the oral copulation was done in concert and/or when the victim couldn’t consent because of intoxication or unconsciousness.
Sex offenders in California are required to register with the police in the city and county where they live. It has to be renewed every year, within 5 days of the person’s birthday, and every time they move.
Defenses Against Oral Copulation With a Minor Charges
The best way to fight an oral copulation with a minor charge is to attack it from the outset. If you have been accused, it is sometimes possible to prove that:
- You reasonably believed that the other person was over 18, or
- The accusation is false
A skilled Los Angeles sex crimes attorney can help you build your defense. If the person said they were over 18, dressed or wore makeup consistent with an older person, or if you met them at a venue where you would expect to see adults (21+ bar, concert, etc.), it is possible to build a solid defense that you reasonably believed the other person to be 18.
In cases of false accusations, it’s possible for your attorney to use investigative tools to uncover the truth in interviews.
Expungement of Oral Copulation With a Minor Charges
If you have been convicted of oral copulation with a minor, you can have your conviction expunged if:
- You did not serve time in state prison from the conviction,
- You successfully completed probation, and
- You are not currently being charged with, on probation for, or serving a sentence for a criminal offense.
NOTE: While you can have the conviction expunged from your record, you will still be required to fulfill all of your responsibilities as a sex offender.
How Do I Fight Child Molestation Charges?
“Mr. Helfend did an amazing job defending my case, I highly recommend him to anyone in need of a great criminal defense attorney.”Anonymous, CA
As with all crimes against children, continuous sexual abuse of the child can be exploited by someone willing to make a false accusation.
There is a long list of reasons why someone might make a false accusation. In some cases, a child might be confused or not fully understand a situation when reporting it to an adult. In others, adults can “coach” children into fabricating false stories in order to harm other adults.
Working with a skilled criminal defense attorney, it is often possible to reveal false allegations based on a thorough and aggressive review of the evidence of the case.
As we mentioned earlier in the article, child molestation charges in California are extremely serious. It’s possible to lose years of your freedom in prison, and you could face a lifetime of trouble on the sex offender list.
If you or someone you love has been accused of child molestation, it is important to begin building your defense as soon as possible. Even informal allegations can mushroom into serious charges, so it is important to be as prepared as possible to defend your freedom.
Call us today at 310-456-3317 for your complimentary and confidential consultation.