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Statute of limitation on sexual assult in California

Hollywood, Los Angeles, CA |

What is the Statute of Limitations in the following scenario: a recent allegation is that in approximately 1978, a man, then 35-40 years of age, sexually assaulted a boy then approximately 13 years old in the state of California.
Could such a case be prosecuted now?

Attorney Answers 3


Such a crime may be prosecuted at any time until the victim has celebrated his 28th birthday. Any crime reported by someone before their 28th birthday related to sexual molestation must be prosecuted within one year of the first complaint to the authorities. If the child was 13 in 1978 it would seem that you cannot now be prosecuted. Whether you are subject to civil suit is another question. And remember that there may be ways to extend the statute that are not evident in your question. Ever hear of Jerry Sandusky?

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Suggest the accused person discuss penal code sections 803(g),(f) with his attorney.

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

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It matters. The answer is maybe.

Sexual abuse cases are highly emotional cases for not only the defendant, but the victim, too. Often, evidence of sexual abuse or a single act is kept secret by a victim for years because the victim does not want to relive the event or events in describing them to law enforcement. In other cases, the victim is a daughter or son and believes greater damage will result if the family loses its financial support in the sexual abuser.

A sad, but common fact pattern our office has repeatedly seen is sexual abuse of a step daughter by a step father. The daughter often comes forward as an older teenager or even young adult, often when her biological mother divorces the step father for reasons unrelated to sexual abuse. The statute of limitations then becomes an issue.

In People v. Steven Russell Smith, a Third Appellate District Courts of Appeal case that came out this week, on August 16, 2011, Smith challenged his conviction as invalid because his prosecution for violation of Penal Code § 288(a) started almost eighteen years after the last alleged incidents of sexual abuse. Section 288(a) has a six year statute of limitations, as it falls within the category of crimes punishable by imprisonment for eight years or more. Smith was sentenced, here, to eighteen years in prison.

The Third Appellate District rejected Smith’s arguments. The court looked at Penal Code § 803(f), which provides that a statute of limitations can be extended if the crime “involved substantial sexual conduct.” The term “substantial sexual conduct” is defined by Penal Code § 1203.066(b) and includes oral copulation, as well as “penetration of the vagina.”

The evidence against Smith included testimony by the victim that Smith had repeatedly committed both acts over a period of years. While the victim seemed to offer inconsistent versions of the acts constituting “substantial sexual conduct,” the court found there was clear and convincing corroboration of such conduct.

The court described how Smith’s failed to deny accusations during a pretext call (a common technique where the victim will telephone the defendant and confront defendant about the conduct, with a detective listening in on the conversation), Smith’s computer disk with 800 pictures of the naked victim and Smith sending naked pictures of the victim to Playboy magazine. The court also described the living arrangement wherein Smith slept in another room from the victim’s mother, which Smith took advantage of to have the victim sleep with him and have sex, unbeknownst to the victim’s mother.

The court then pointed to the overall verdicts, saying that the jury must have found the victim to be a credible witness. The court seemed particularly swayed by evidence introduced at trial that Smith, after being divorced from the victim’s mother, became engaged to another woman with a teenage daughter, who he attempted to molest, and when arrested, Smith had an Internet profile of a fifteen year old girl, on which was written, “moms with daughters lesbian chat room.”

In short, the court affirmed the trial court’s extension of the statute of limitations to convict Smith. So, to answer your question, I would need more facts.

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