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Child Molestation Lawyers Explain Charges for Continuous Sexual Abuse of a Child – California PC 288.5


Have You Been Accused of Continuous Sexual Abuse of a Minor?

The California criminal defense attorneys at Wallin & Klarich collectively have decades of experience defending people accused child molestation offenses. People charged with California child molestation offenses require aggressive, experienced, and knowledgeable attorneys. If you are charged with a California child molestation offense, your freedom depends upon choosing such an attorney. At Wallin & Klarich, we’ve been defending people accused of child molestation offenses for almost thirty years. In fact, we defended people accused of such crimes back when no other attorneys even wanted to take on such cases (Click Here To Read Story). Contact us today for a free, no obligation consultation with our team of experienced child molestation lawyers.

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Continuous Sexual Abuse of a Child – What Is It?

The term “continuous sexual abuse” is what we in the law call a “term of art.” This means that the law gives it a special definition that might be different from the definition you might think it has. The definition is set forth in California Penal Code section 288.5.1 To qualify as “continuous sexual abuse of a child” the law requires that the prosecution prove the following elements:

  1. The accused resided in the same home with the minor child, or had “recurring access” to the child;
  2. The accused engaged in three or more acts of “substantial sexual conduct” with the child OR engaged in three or more acts of “lewd or lascivious conduct” with the child;
  3. Those three or more acts occurred over a period of time of not less than three months in duration; and
  4. The child was under the age of 14 years at the time the acts were completed.

What is “Recurring Access” under the California Penal Code?

To be found guilty of continuous sexual abuse of a child in California, the prosecution needs to prove you had recurring access to approach and contact the child.
Did you have an “ongoing ability to approach and contact the child?”

First, the California Supreme Court2 has ruled that the term “recurring access” means an “ongoing ability to approach and contact [the child in issue] time after time.”3 In making this ruling, the Court expressly rejected a lower court’s ruling that “recurring access” required a showing that the accused person had some sort of authority over the child and a relationship with the child separate and apart from the sexual activity in issue.4 Thus, for example, a neighbor who simply repeatedly entered a child’s house without the child’s parent’s(s’) knowledge, and had sex with the child, could be said to have “recurring access” to the child even where the person had no other contact or relationship with the child and even where the parent(s) of the child had no idea that this person was entering their home.

How is “Substantial Sexual Conduct” Defined under the Penal Code?

Second, “substantial sexual conduct,” has a unique meaning. That term is defined in Penal Code section 1203.066(b),5 and means: “[P]enetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”

What is Considered “Lewd or Lascivious Conduct” under the Penal Code?

Third, “lewd or lascivious conduct” is defined in Penal Code section 288(a),6 and means touching any part of a child’s body (and, by the way, “any part” means that the touching does not have to be of the child’s “private” areas, such as sex organs, buttocks, or breast area, but can be any part of the child’s body), whether “skin to skin” or over clothing, “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of either the child or the accused.” Put simply, if a person touches any part of a child’s body, whether over clothing or not, and the touching is done with a “sexual” intent, such touching is considered “lewd or lascivious” touching under the law. There is no requirement that the “lust, passions, or sexual desires of either the child or the accused” actually be aroused. It is not a defense that the child consented to the act.

Can I be Convicted of Continuous Sexual Abuse of a Minor if I Thought He/She was 18?

Fourth involves the age element. Under California law, it is no defense that the accused believed that the child was over 18 – no matter how “reasonable” that belief might have been.7

How will the Jury Determine Whether the Abuse was a Continuing Act?

In order to be convicted of PC 288.5, the jurors must agree that the child was touched at least three times with sexual intent.
The jury must determine whether the child was touched 3 or more times with sexual intent.

Fifth involves the concept of “unanimity” and requires some explaining. You likely know that, if you’re accused of a crime, you have a constitutional right to a jury trial.8 That right to a jury trial means, among other things that, if the prosecutor presents evidence of more than one act to prove that the you committed a crime, the jury cannot find you guilty unless all 12 jurors agree that you committed at least one of the acts, and all 12 further agree which specific act was committed.

We know that sounds a little confusing in the abstract, but an example will make it much clearer. Say a person is accused of one count of battery because they were involved in a fight. Say further that testimony came out that the accused person slapped the victim in the face and punched him in the stomach. Remember, the prosecutor charged only ONE count of battery and not two. In this case, all 12 jurors would have to agree that the accused person committed at least ONE of those two acts, and, further, they’d all have to agree as to which act the accused committed. They could not convict if 6 believed that the accused slapped the victim in the face, and the other 6 believed that the accused punched the victim in the stomach. Of course, they could all agree that the defendant committed BOTH acts. Judges are required to give what’s called a “unanimity instruction” that informs the jury of this point of law – UNLESS the prosecutor decides to “elect” which act was the crime and specifically tells the jury that they must only convict if, say, they all believed the accused punched the victim in the stomach.9

Understand that application of the unanimity rule often depends upon how the legislature defines the crime – especially in cases involving “continuing” crimes, such as a conspiracy that goes on over many months or, as here, continuous sexual abuse of a child. Here, the way the legislature has defined the crime of continuous sexual abuse of a child, the prosecution does not have to convince all 12 jurors that 3 specific acts occurred – only that 3 or more acts occurred. So, if, for example, some jurors believed that the accused touched the child on the child’s buttocks, and others believed that the accused touched the child on the child’s breast area, that would be sufficient to convict – so long as all 12 jurors agree that the accused person touched the child 3 or more times with a “sexual” intent within the relevant time period. This, naturally, makes these charges all that much harder to defend against because it allows the prosecution to bring out evidence of many different sexual acts and doesn’t require the jury to agree as to which acts the accused.

Speak to a Child Molestation Lawyer at Wallin & Klarich Today

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Contact our experienced sex crimes attorneys today

With over 30 years of experience defending clients accused of child molestation, our team of attorneys awaits your call to provide you with the assistance you need during this difficult time. We were the first firm in Southern California to stand up for the rights of those accused of child molestation, and we have represented (and continue to represent) members of the California Teachers Association that have been accused of child molestation in Southern California. We understand the struggle you are going through right now, and you do not have to face these charges alone. Our offices are conveniently located in Orange County, Los Angeles, Riverside, San Bernardino, West Covina, Victorville and San Diego.

Call us today. (877) 4-NO-JAIL or (877) 466-5245.

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