What You Need to Know if a You Are Ever Charged With Having Sexual Contact with An Underaged Person

We are often consulted by clients who are accused of having improper sexual contact with minors.   The scenarios they present are endless:  they range from a grandfather who is accused of inappropriately touching his granddaughter’s friend, to same sex individuals where one is age 15 at the time of the alleged sexual conduct.

Clients often ask us what crimes they might be charged with, how long the government has to file a case against them, and how long a sentence they might have to serve if they are convicted of any of these crimes.  These questions are relatively straightforward.  The answers, however, are not, especially where the alleged victim was a minor at the time the sexual contact occurred.

Here is an overview of the law that applies.

Overview of Potential Liability (or what claims could be alleged, what is the potential sentencing exposure and, what is the applicable statute of limitations):

Preliminarily, when computing statute of limitations in criminal matters, you must look at the potential sentencing exposure should there be a conviction.  The length of the potential sentence often determines the statute of limitations.  As you will see below, this is complicated when the crimes involve a minor (i.e., a person under the age of 18) and there is a wide age gap between the “victim” and the perpetrator.

The penalties for violating California’s “lewd acts with a minor” law vary, depending on the age of the child (and possibly the age difference between you and the minor), the specific facts of the case (for example, did the act involve force or violence?), and your criminal history.  These factors will determine the length of any prison sentence that prosecutors could seek.

If prosecutors charge you with child molestation when the alleged victim is 14 or 15 years old, and if you are at least ten years older than the minor, the charge is what’s known as a wobbler.   A “wobbler” can be filed as either a misdemeanor or as a felony.  The only true difference between misdemeanor and felony sentencing for a “lewd acts with a minor” charge lays in (1) the fine, and (2) the potential jail/prison sentence.  Misdemeanor child molestation subjects you to a maximum one-year county jail sentence and a maximum $1,000 fine.   Felony charges subject you to one to eight years in state prison and a maximum $10,000 fine.  In the event that you are significantly older than the minor in this case, you most likely will be charged with a felony.  If you are convicted, you would most likely be sentenced to state prison (as distinguished from county jail) where you would serve your sentence.

Additionally, you face the following penalties which pertain to violating any California “lewd acts with a minor” law:  Penal Code section 290 lifetime registration as a sex offender; a requirement that you pay for any medical or psychological treatment that the minor incurs as a result of the offense; and an additional and consecutive five-year state prison sentence if the minor suffers great bodily injury because you use force or violence during the offense (“great bodily injury” is significant or substantial physical injury).

You may be charged with Unlawful Sex with a Minor per Penal Code § 265.1 which provides, in pertinent part, as follows:

(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of theperpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

You may also be charged with Rape in violation of Penal Code § 261. In that event, provided the prosecution alleges that the alleged victim did not consent, the potential sentences are as follows:

(c) (1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years.

(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.

Another potential count that could be filed would be for violation of Penal Code § 269, or Aggravated Sexual Assault of a Child, which provides as follows:

(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child:

(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. (2) Rape or sexual penetration, in concert, in violation of Section 264.1. (3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. (5) Sexual penetration, in violation of subdivision (a) of Section 289.

(b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.

(c) The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.

There are also a variety of offenses that are related to Penal Code § 288 Child Molestation either because they are frequently charged in connection with a count for Lewd Act with a Minor, or are part of a Penal Code § 288 charge.  These are the most common examples:

–  California Penal Code § 288.2 – Harmful Matter Sent with the Intent of Seduction of a Minor: If you knowingly send or email erotic material to a minor with the intent of arousing yourself or the minor, you may be convicted of Penal Code § 288.2.   An example would include chatting online with a child you believe to be 12 years old, and then emailing him/her a nude photo.  This crime can be punished as a misdemeanor or felony, subjecting you to a county jail or state prison sentence.

–  California Penal Code § 288.5 – Continuous Sexual Abuse of a Child:  This crime involves engaging in three or more “acts of lewd or lascivious conduct” over a period of three months or longer, with a child under 14 years of age. A person convicted of Penal Code § 288.5 faces between 6 and 16 years of state prison.

–  California Penal Code 243.4 – Sexual battery:  Penal Code 243.4 “sexual battery” prohibits touching the intimate part of another for sexual arousal, gratification, or abuse.   The difference between this law and Penal Code § 288 “lewd acts with a minor” is that “sexual battery” makes no mention of the victim’s age.  If the minor was 14 or 15 and less than ten years younger than you or was 16 or 17, this is the offense with which prosecutors would likely charge you.   A “sexual battery” charge may be filed as either a misdemeanor or as a felony.

How Statutes of Limitations are Computed For “Sex Crimes:”

The applicable statute of limitations is determined by reference to the maximum punishment possible under the statute.

If an offense is not punishable by death or imprisonment in a state prison, i.e., if it is a misdemeanor, the statute of limitations is ordinarily one year.  See Penal Code § 802; People v Mincey (1992) 2 Cal.4th 408.   For an offense punishable by imprisonment in a state prison for less than 8 years, the statute of limitations is ordinarily 3 years.   See Penal Code § 801.

The statute of limitations that applies to a “wobbler” (a crime that may be charged either as a misdemeanor or as a felony) that is charged as a misdemeanor is determined by reference to the maximum felony sentence.  See Penal Code § 805(a).  When a misdemeanor is charged as a felony because of prior convictions, the felony statute of limitations applies.  See Penal Code § 801; People v San Nicolas (1986) 185 Cal.App.3rd 403.   If an offense is punishable by imprisonment of 8 years or more, the statute of limitations is ordinarily 6 years.  See Penal Code § 800.  [There is no statute of limitations for an offense that is punishable by death, imprisonment in state prison for life, or imprisonment for life without possibility of parole, or for an offense involving embezzlement of public money.  See Penal Code § 79.]

There are some important exceptions to these rules, including cases which involve sex crimes against victims under 18 at the time of the offense (see Penal Code §§ 801.1(a) and 803(f)) and sex crimes when the suspect’s identity is later conclusively established by DNA testing (see Penal Code § 803(g)).   Although the statute of limitations generally begins when the offense is committed (see, e.g., Penal Code § 802), for some crimes it does not begin to run until the crime is discovered. Penal Code § 803(c).

How the Time the Offense Occurred Impacts the Case Where Sex Crimes Are Alleged:

Although the charging document (which can be what’s called a complaint, information, or indictment) need not allege the exact date upon which the offense occurred, it must allege facts showing that the prosecution is not barred by the statute of limitations, and if the time elapsed exceeds the statute of limitations, the charging document must allege further facts, e.g., the defendant’s absence from the state for a sufficient period to toll the statute under Penal Code § 803(d).  See also In re Demillo (1975) 14 Cal.3rd 598.

The following is an excerpt from the seminal handbook California criminal lawyers use on a daily basis, CALIFORNIA CRIMINAL LAW PROCEDURE AND PRACTICE (2011 ed.), which discusses how timing issues are problematic, especially in child sexual abuse cases:

Pleadings in cases involving repeated or continuous acts of child sexual abuse present special problems for the defense because the charging document may be vague about when the offense occurred, e.g., Count 1: a violation of Pen C § 288(a) between September 1, 2003, and December 31, 2003. The California Supreme Court has upheld such generic accusatory pleadings against due process challenge.  See People v Jones (1990) 51 C3d 294, 317, 270 CR 611 (generic child molestation pleading does not deprive defendant of due process rights to notice and to present defense).

In Jones, the court observed that the defendant had a variety of procedural remedies to test the pleading, such as demurrers and pretrial motions to set aside the information or indictment (Pen C § 995 motion). 51 C3d at 320. However, the decision in People v Jennings (1991) 53 C3d 334, 356, 279 CR 780 (no due process notice violation in information that alleged offense occurred “on or about the summer of 1983”) suggests that a demurrer to generic child molestation charges is not likely to be successful. Defense counsel should demur but should also be prepared to pursue pretrial motions to dismiss under Penal Code § 995 (see chap 13) and to require the prosecutor to elect the specific incident on which he or she is relying to prove a particular count. See § 31.33. At trial, counsel should request a jury unanimity instruction. See CALCRIM 3550.  See also People v Jones (1990) 51 C3d 294, 321, 270 CR 611.

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