Things to know if you are being investigated for a child-molestation-related charge in the San Francisco Bay Area and beyond.
California has many different laws relating to child molestation. It can be a sea of confusion trying to sort out which law prohibits what behavior and what the possible punishments and defenses are. This article will help sort things out by detailing the elements, punishments, and defenses of various crimes.
Because the crimes discussed here include mandatory registration as a sex offender under Penal Code § 290, we'll start with an overview of that law. Let's go.
1. Sex-offender registration under Penal Code § 290
Section 290(c) lists many crimes that require mandatory registration as a sex offender. Get convicted of one of those crimes, and the judge must order that you register as a sex offender.
If forced to register, you will have to report to a local law-enforcement office every year within 5 days of your birthday or any time you move residences.
Most likely, all of your information (name, address, photo, criminal history) will appear online at the Megan’s Law website, as about have their information online.
Registering and being exposed online is a scary prospect, but failing to register is a crime under Penal Code § 290.018. If you have to register as a result of a misdemeanor sex crime, then failing to register is a misdemeanor. But if you were forced to register because you convicted a felony, then failing to register is a felony punishable by up to 3 years in state prison.
Once you get on the registry, it is very hard to get off. You will need to have your conviction expunged under Penal Code section 1203.4 and then apply for and be granted a Certificate of Rehabilitation under Penal Code § 4852 et seq, or prevail on what's called a Hofsheier writ.
Hofsheier writs come from the California Supreme Court case People v. Hofsheier, 37 Cal. 4th 1185 (2006), from Santa Cruz County. The defendant was a 22-year-old man who pleaded guilty to oral copulation with a 16-year-old girl in violation of Penal Code § 288a(b)(1). As a result, he had to register as a sex offender. On appeal, he argued that it violated the California and United States Constitution to force him to register when defendants who actually had sex with a minor (violating Penal Code § 261.5) did not have to. The court agreed that it violated equal protection to force him to register for having oral sex with a minor but not force registration on defendants who had sex with a minor. People v. Hofsheier, 37 Cal. 4th 1185 (2006).
Under Hofsheier, it might violate equal protection if you have to register as a sex offender when another person who committed a similar or more serious sex crime does not have to. Defendants who win Hofsheier writs get to avoid mandatory registration. However, the trial court may still require sex offender registration under Penal Code section 290.006 which allows for discretionary registration. If you have been clean for many years, without any subsequent contacts with law enforcement or any violations of probation, it is unlikely that the discretionary registration would be imposed.
Sex offenders also face restrictions on where they can live. Under Jessica's Law (Penal Code § 3003.5), sex offenders cannot live within 2,000 feet of a school or park where children regularly gather. This can be a significant problem in cities with many schools and parks. Indeed, a San Diego newspaper reported that, between 2007 and August 2011, homelessness among registered sex offenders jumped an astonishing 5,700 percent. Perhaps this explains why the California Supreme Court decided in January 2013 to decide whether the residency restriction in Jessica's Law violates defendants' constitutional rights. The case is currently pending and is called In re William Taylor, case number S206143. You can get news about the case here.
If you have detailed questions about sex-offender registration, you should contact our firm immediately. With this overview of Penal Code section 290, the following is a discussion of the specific crimes relating to child molestation.
2. Lewd acts with a child – Penal Code § 288
Section 288 makes it a crime to willfully and lewdly commit a lewd or lascivious act on a child under age 14, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or child. What does all this mean? The California Criminal Jury Instructions (CALCRIM 1110) break it down into three elements that the prosecution must prove to win a conviction:
- The defendant willfully touched any part of a child's body on the skin or through clothing, or caused the child to touch the defendant or someone else;
- The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child; AND
- The child was under age 14 at the time of the touching.
The word “willfully” appears in the first element, and it just means that the act was done purposefully. CALCRIM 1110.
Read the elements and you can see that this crime covers a broad range of conduct. Note that the first element refers to “any part of a child's body,” meaning that this crime is not limited to touching private areas. It also includes touching “through clothing,” meaning you can commit this crime even if the child is fully clothed.
The second element is very important because it protects most people from committing this crime. Parents, friends, babysitters, coaches, teachers, nearly everyone touches children under age 14 through the clothing, but we don't convict everyone. That is why the second element only applies to acts intended to sexually arouse the defendant or the child.
In a case from Los Angeles County, a court held that in determining the defendant's intent, the law is that “all the circumstances are examined.” In re R.C., 196 Cal. App. 4th 741, 750 (2011). “All the circumstances” means the jury can consider anything they like, but courts have provided a list of some relevant factors: the nature and manner of the touching, the defendant's statements made out of court, the relationship of the defendant and child, and any coercion, bribery, or deception used to obtain the child's cooperation or avoid detection. Id.
B. Possible punishments
With all the crimes in this article, realize that California has a complex body of sentencing law including sentencing enhancements which can add years to a sentence. For example, under the Three Strikes Law, if you have a prior conviction for a serious or violent felony, then your sentence for any new felony doubles. Penal Code § 667(e)(2)(C). It would be impossible to discuss all the possible enhancements here, so we will focus on just what sentences the child-molestation-related charges carry.
A violation of section 288 is a felony that carries possible sentences of 3, 6, or 8 years in prison. The judge decides which term to impose, and it is possible to be granted probation with a county jail sentence or other sanction as well.
But the sentence gets worse if the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. In that case, the terms are 5, 8, or 10 years. § 288(b)(1). Those same terms apply when the defendant is a caretaker who committed the crime against someone who depended on their care. § 288(b)(2).
The age of the victim matters for sentencing too. Under section 288(c), if the victim was age 14 or 15 and the defendant was at least 10 years older, then the crime is a “wobbler,” meaning it can be charged as a felony or misdemeanor. The punishment ranges from less than a year in County Jail to 3 years in state prison.
This crime also falls under the mandatory sex-offender registration law in § 290(c) described above.
C. Possible defenses
The prosecution must prove every element of the crime beyond a reasonable doubt, In re Winship, 397 U.S. 358, 363 (1970) (holding that the beyond-a-reasonable-doubt standard “plays a vital role in the American scheme of criminal procedure), so any crime can be defended by showing that just one element was not proved. For instance, element one requires willfully touching a child—if you never touched a child, or touched a child accidentally, then element one is not met and you should be found not guilty. More likely, defendants will admit to touching a child under age 14 (remember that many people do this frequently) but will deny doing so with the intent to cause sexual arousal.
Again, when determining the defendant's intent, “all the circumstances are examined.” In re R.C., 196 Cal. App. 4th 741, 750 (2011). This means that any fact can work in your favor. For instance, if you have an “innocent explanation” for touching the child, that can work as a defense. Id.
Another defense is to attack the accuser's credibility and make the jury less likely to believe the child. This is where a lawyer can be extremely valuable. Perhaps the child accusing you has lied before about something important. For instance, the child might have falsely reported a classmate to the school counselor to settle a schoolyard problem. Or the child may falsely accuse you because they dislike you or simply want attention. Under California law, you are allowed to show that the accuser has a bias against you and history of being dishonest. Evidence Code § 780.
3. Continuing sexual abuse of a child – Penal Code § 288.5
This is a unique crime in that it punishes not just one “crime” but several crimes over an extended period. Section 288.5 makes it a crime when: (a) you live in a home with a child under age 14 or have recurring access to that child; and (b) you engage in at least 3 acts of sexual misconduct with the child over a period lasting at least 3 months.
In a case out of San Diego County, the California Supreme Court defined “recurring access” to mean, “an ongoing ability to approach and contact someone time after time.” People v. Rodriguez, 28 Cal. 4th 543, 547 (2002).
The second element makes clear that the acts of misconduct must span at least a 3-month period. So committing 10 acts of misconduct over 2 and a half months will not violate the statute, but committing 3 acts of misconduct over 3 months and a day will violate it.
This is a problematic crime because the jurors can convict even if they don't all agree on the same 3 acts of misconduct, as long as they agree that 3 acts of misconduct did occur. CALCRIM 1120 & § 288.5(b). This means that all 12 jurors must agree that at least 3 acts occurred, but they do not have to agree which ones. For example, suppose the defendant is accused of committing this crime over the four-month period between January 1 and May 1. The prosecution alleges that he committed 6 acts of misconduct during that period. Let's call them act A, B, C, D, E, and F. The jury can convict even if half the jury thinks that only acts A, B, and C occurred and the other half of the jurors think that only acts D, E, and F occurred. They disagree over which acts, but they all agree that at least three occurred.
Because this statute punishes several acts of misconduct over a period of time, it carries a harsh sentence. The range in section 288.5(a) is 6, 12, or 16 years.
Although the penalty is harsh, the prosecution cannot double-charge. Using the example from above, with acts A, B, C, D, E, and F, the prosecution cannot charge continuing abuse under section 288.5 and then add on six additional charges for each individual act of abuse. § 288.5(c). But if there were multiple victims, the state can bring a separate charge for each victim. § 288.5(c).
C. Possible defenses
As with all of these sex crimes, attacking the accuser's credibility is important. You can show that the accuser has a history of making false accusations or has a bias or motive to lie. Evidence Code § 780. It is also crucial to raise any mental health or substance abuse issues that the accuser or their parents or guardians may be suffering from.
Given this crime's lengthy sentence, a strong defense is essential. Your attorney can challenge each element of the crime. You can argue that you did not live with the child and did not have “recurring access,” but most importantly it is essential to attack the credibility of the accuser or their parent or guardian.
You can also attack the element that the acts occurred over a period of at least three months. For instance, in a case out of Los Angeles County, the court held that it is not sufficient for a conviction when the victim provides merely “generic testimony” about the time period that is “so vague that the [jury] can only speculate as to whether the statutory elements have been satisfied.” People v. Mejia, 155 Cal. App. 4th 86, 97 (2007).
4. Oral copulation – Penal Code § 288a
By statute, oral copulation means “the act of copulating the mouth of one person with the sexual organ or anus of another person.” § 288a(a). In plain English, it means any contact, “no matter how slight,” between the mouth of one person and the sexual organ or anus of someone else. CALCRIM 1080.
Note that this crime only requires contact—the state does not need to prove penetration. CALCRIM 1080.
B. Possible punishment
This crime contains a wide range of possible punishments depending on the age of the perpetrator and victim (all can be found here):
- For anyone who violates section 288a with a person under age 18, the crime is a “wobbler,” meaning it can be a misdemeanor or a felony punishable by up to 3 years in prison. § 288a(b)(1).
- When the perpetrator is over age 21 and the victim under 16, this is a felony punishable by either 16 months, 2 years, or 3 years under Penal Code § 18. § 288a(b)(2).
- If the victim is under age 14 and the perpetrator is more than 10 years older, the penalty is 3, 6, or 8 years in state prison. § 288a(c)(1).
- If the perpetrator uses force, violence, duress, or the fear of an immediate injury, the penalty is harsh:
- If the victim is under age 14, the penalty is 8, 10, or 12 years. § 288a(c)(2)(B).
- If the victim is over age 14, the penalty is 6, 8, or 10 years. § 288a(c)(2)(C).
We are covering some of the same ground with each of these crimes. For instance, again attacking the accuser's credibility is a viable defense for raising reasonable doubt. Evidence Code § 780. If the jury does not believe the accuser, they are not likely to convict.
And like with all of these crimes, you may have a defense if the contact did not occur. Section 288a requires actual contact between the mouth and sexual organ or anus—if no contact occurred, then there was no violation. § 288a(a).
One defense that is not available is consent. You can't argue that the child consented. CALCRIM 1080.
5. Aggravated sexual assault of a child – Penal Code § 269
This section punishes anyone who commits one of several crimes on a child who is under age 14 and at least 7 years older than the child. The crimes include: rape, rape or sexual penetration committed in concert with someone else, sodomy, oral copulation, and sexual penetration. § 269(a)(1)-(5).
Only some of these crimes qualify for conviction under section 269. For instance, section 269 lists oral copulation, but only some kinds of oral copulation. There are too many variations to explain them all here, but your attorney can identify precisely whether you fall within the listed crimes.
This is the harshest sentence of all the crimes we've discussed. Section (b) of § 269 requires punishment in the state prison for 15 years to life.
That means that you will serve a minimum of 15 years, and even then you might never be paroled. After 15 years, you will have to appear before the Parole Board, which has the option of releasing you (if they decide that you are no longer dangerous), or keep you in prison (because they doubt that you are rehabilitated). See In re Lawrence, 44 Cal. 4th 1181 (2008).
If the Board decides to keep you in prison, they can delay you next parole hearing for 3, 5, 7, 10, or 15 years. Penal Code § 3041.5(b)(3).
But realize this: the Board never has to let you out. They can deny your parole forever.
Because section 269 punishes people who commit other crimes (the five listed above in Part 5.A), the defense needs to relate to those other crimes. If you can successfully defend against those other crimes, then by definition you have not violated section 269.
Contact your attorney to discuss defenses to the crimes listed in section 269. The threat of a life sentence is too large to face alone.