Penal Code 288.7 PC - Sex with a Child Under 10
California law particularly harshly punishes sexual acts committed against minors—especially if the child is under 10.
Under Penal Code 288.7 PC, it's a felony offense to engage in sexual intercourse, penetration, sodomy, or oral copulation with any child aged ten or younger.
If you're convicted of this crime, you could face up to life imprisonment—and even if you spend less time in prison, you'll have to register for life under California's sex offender registration system.
PC 288.7 says, “(a) Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.”
Subsection 288.7(b) says, “Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.”
To be convicted of violating PC 288.7, the prosecution has to prove that you engaged in sexual intercourse, sodomy, oral copulation, or sexual penetration with the child when they were age ten or younger and that you were over the age of 18.
Notably, sex with a child ten or younger is a “strict liability” offense, which means the prosecutor does not have to prove you had malicious intent. In other words, proving that you just committed the sex act is sufficient to obtain a conviction.
Further, this sex crime can be committed by an adult performing a sex act on the child, or they cause the child to perform a prohibited sex act on them, someone else, or themselves. Let's review this law in more detail below.
Overview of PC 288.7
While there are numerous statutes in California criminalizing various sex acts involving minors, PC 288.7 deals specifically with the following sex crimes where the perpetrator is 18 or over and the victim is ten or younger:
- Sexual intercourse, such as vaginal or genital penetration by the penis;
- Sexual penetration, such as vaginal or genital penetration with a foreign object;
- Sodomy, such as anal penetration by the penis;
- Oral copulation, such as contact with genitalia or the anus by mouth.
Other things to know about this law:
- The cutoff point for the child victim under this law is up to their 10th birthday. In other words, “10 years of age or younger” refers to children who have not passed 10. If the child is older, different laws apply.
- Consent cannot be used as a defense under this law. Under California law, children under 18 have not reached the age of consent.
- Prosecutors don't have to prove criminal or malicious intent with this crime. They only need to show evidence that the sexual act occurred.
What Are Some Examples?
EXAMPLE 1: Bart, age 20, has sexual intercourse with his neighbor's daughter, age 8. Bart can be charged under PC 288.7.
EXAMPLE 2: Tim, age 15, has sex with his cousin, who is 9, convincing her they have a “special relationship.”
While Tim may be charged with other crimes, including PC 261.5 statutory rape, he cannot be charged under PC 288.7 because he is not yet 18.
EXAMPLE 3: Darlene runs a daycare center. She touches the genitals of one of her younger charges for pleasure but does not penetrate them.
While Darlene may be charged with other sex crimes, including PC 288 lewd acts with a minor, she won't be charged under PC 288.7 because there was no sexual penetration.
What Are the Related Crimes?
Several California statutes are related to Penal Code 288.7 PC sex with a minor under the age of 10, including the following:
- Penal Code 288 PC – lewd acts on a minor;
- Penal Code 288.2 PC – send harmful matter to a minor;
- Penal Code 288.3 PC – contact a minor to commit a felony;
- Penal Code 288.4 PC – arrange a meeting with a minor;
- Penal Code 288.5 PC – continuous sexual abuse of a child;
- Penal Code 287 PC – oral copulation with a minor;
- Penal Code 261.5 PC – statutory rape;
- Penal Code 647.6 PC – annoying or molesting a child;
- Penal Code 311.1 PC – child pornography;
- Penal Code 207/209 PC – kidnapping.
What Are the Penalties for PC 288.7?
PC 288.7 carries some of the most severe penalties under California law, almost always resulting in an extended prison stay.
For example, if you're convicted of this crime, California calls for the following penalties:
- For crimes involving oral copulation or sexual penetration: 15 years to life in prison.
- For crimes involving sexual intercourse or sodomy: 25 years to life in prison.
In certain conditions, defendants may be eligible for parole after serving their minimum sentence, 15 or 25 years, respectively.
Still, they will only be released after a favorable ruling from the California Parole Board.
Sex Offender Registration
In California, sex with a child under ten is considered a Tier 3 sex crime on the Sex Offender Registry. Therefore, if you are convicted, serve time in prison, and are released, you will still have to register as a sex offender for life.
This means you must register with local police upon release and re-validate your registration every year, and every time you relocate, for the rest of your life. You will also face restrictions on where you can live and work.
What Are the Defenses for PC 288.7?
Despite the severity of this crime, you may be able to implement specific defense strategies if you are accused of violating PC 288.7. These are discussed below.
Perhaps we can argue that there was no sexual contact. It is not a crime to have physical contact with a child that is not sexual. For example, perhaps you were bathing a child and touching their genitals, but not in a sexual way or for sexual purposes.
Perhaps we can argue that the child was over ten years old. While you may still be charged with other sex crimes with this defense, you may be able to avoid a long-term prison sentence or life in prison if you can show the victim had passed their 10th birthday during the alleged sexual incident.
Perhaps we can argue that the allegations are false. Maybe the accuser is lying or mistaken. Perhaps the child was coached by an adult with wrong motives. Possibly the child was upset over discipline and made false accusations.
Perhaps we can negotiate with the prosecutor for reduced charges or convince them not to file formal charges in the first place (DA reject). You can contact our law firm for a case review by phone or using the contact form. Eisner Gorin LLP is based in Los Angeles, CA.
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