Information on the California crime of contracting for sex acts with a child is found at penal code section 310.5.
Essentially, contracting for sex acts with a child is charged as a misdemeanor (PC 310.5 Abbrev.). The crime occurs when the child’s parent, or legal guardian, contracts on behalf of his or her child, for the child to engage in sexual acts with a third person.
Note: The child’s parent, or legal guardian, and the third person who enters into a contract for sex acts with a child, are all in violation of penal code 310.5.
This summary of PC 310.5 covers the law, punishment, and common defenses related to the crime of contracting for a sex with a minor. For further information, contact our sex crimes criminal defense lawyers for a free consultation.
PC 310.5 Law
PC 310.5(a) Any parent or guardian of a child, who enters into an agreement on behalf of that child…, for that child to engage in sex acts with a third person, and any alleged perpetrator of an unlawful sex act upon that child who enters into such an agreement, is guilty of a misdemeanor (PC 310.5 Abbrev.).
According to PC 310.5(c), an “unlawful sex act,’ means a felony sex offense committed against a minor (aka, a person under the age of eighteen). A “felony sex offense” includes, but is not limiting to, sexual penetration, oral copulation, sexual intercourse, or sodomy with the child.
Note: It is a violation of PC 310.5 when the parent or guardian, or third person, agrees to contract for sex acts with the parent or guardian’s child. It does not matter if the sex act that was agreed to in the contract was completed. In fact, if the sex act with the parent’s child or guardian is attempted, or completed, other sex crimes may be charged.
Example: David is Lisa’s legal guardian. Lisa is sixteen years old. David enters into an agreement with his friend, Mark, whereby David allows Mark to have sex with Lisa in exchange for money.
Result: David and Mark may both be charged with PC 310.5. This is true even if Mark never has sex with Lisa. If Mark does have sex with Lisa, then Mark may be charged with additional crimes, including felony statutory rape (PC 261.5), and David may be charged with aiding and abetting statutory rape, or even pimping a minor (PC 266h(b)).
PC 310.5 Punishment
Classification: Contracting for sex acts with a child is a misdemeanor when it is the parent or legal guardian of the child making the contract for felonious sex acts with the child. The third person who enters a contract to engage in sex acts with a minor may also be charged with a misdemeanor under PC 310.5. Contracting for sex acts with a minor is charged under different penal code sections when the defendant is not the child’s parent or legal guardian.
For example, contacting for sex acts with a child, when the defendant is not the child’s parent or legal guardian, will likely be charged as pimping a minor (PC 266h), or human sex trafficking (PC 236.1).
Jail Sentence: PC 310.5 convictions carry a maximum 180-day jail sentence, and a minimum 30-day jail sentence. Probation may be allowed in some cases (See "Probation Sentence" below).
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail sentence. A probation sentence is allowed after a conviction for PC 310.5, but a probation sentence is never guaranteed.
Whether the defendant receives a misdemeanor probation sentence after PC 310.5 conviction depends on the facts and circumstances of the case, including the defendant’s criminal history, the harm caused to the child, the sophistication level of the case, and more.
Note: A probation sentence in PC 310.5 cases is classified as ‘summary probation,’ or ‘informal probation.’ This essentially means that the court monitors the probationer’s probation, as opposed to a felony probation officer.
Work Release: In some cases, when the defendant is convicted, or plead “guilty,’ or “no contest,” to PC 310.5, the defendant may serve his jail sentence alternatively on work release. The same is true for any jail commitment ordered as a term of probation if the defendant is granted probation.
Court Fines: Per PC 310.5(b) “every person convicted…, ‘PC 310.5,’ shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000)' [PC 310.5(b) Abbrev.]
Contract Fine: The court, as a term of punishment after a conviction for PC 310.5, may order the contract fee, which was paid under the illegal contract, if any, to be paid to the court and directed to the “State Childrens’ Trust Fund.” This is true even though the contract itself is unenforceable as a matter of law (Civ Code 1669.5).
Additional Punishment: In addition to the punishment listed above, if found guilty of contract on behalf a child for a sex act (PC 310.5), the defendant may face immigration consequences, professional licensing consequences, criminal protective orders, restitution, military service consequences, and more.
Note: Sex offender registration is not mandatory after a conviction for PC 310.5. However, if the court finds that the defendant acted with sexual compulsion when he contracted for a sex act with a child, then the court may, in its discretion, order sex offender registration (PC 290.006).
PC 310.5 Defenses
Common defenses to PC 310.5 charges include reasonable mistake of fact as to the child’s age (though other sex crimes could still apply), insufficient evidence, illegal search and seizure, lack of Miranda Rights followed, statute of limitations, entrapment, coerced confession, and more.
Note: In most PC 310.5 cases, the defendant and the contracting parent or legal guardian do not reduce the agreement to a writing. Additionally, a private citizen's unauthorized recordings are not allowed as evidence in court (PC 632). This can make the terms of the illegal contact difficult to prove without undercover police officer testimony and/or recordings.
Diversion Options: Criminal charges related to contracting with a third person for sex acts with a minor may be diverted in some cases. To divert criminal charges means to avoid prosecution upon successful completion of probation-like conditions. For more information, see Judicial Diversion for Sex Crimes.
For more information on the crime of contracting on behalf of a child for sex act, or California penal code 310.5, contact our sex crimes criminal defense attorneys today for a free consultation.
Our award-winning and successful sex crimes defense lawyers, including winning trial lawyers, have helped hundreds of people charged with misdemeanor and felony sex crimes in the IE, including PC 288(a) [Lewd and Lascivious Act with Child Under 14], PC 261.5 [Statutory Rape], PC 243.4 [Sexual Battery], PC 311.11 [Possession of Child Pornography], PC 647.6 [Annoy or Molest a Minor], PC 647(b) [Prostitution], and more. Call today!