The California PC 288 outlines the crime of Lewd Acts with a Minor. According to this statute, it is an offense to touch a child below 14 years in a sexual manner or for sexual purposes. You may also commit this crime if you cause a child to touch themselves or another person for sexual purposes. This statute applies to any child below 16 years. However, most prosecutions for Lewd and lascivious acts with a minor involve children below 14 years.
Many people refer to this crime as lewd acts with a child below 14 years or lewd acts with a minor below 14 years. If you face charges for lewd acts with a child, the consequences could be detrimental. Therefore, it is advisable to contact an experienced criminal defense attorney immediately after the prosecutor accuses you of the crime. If you need reliable legal representation, the Riverside Criminal Defense Attorney Law Firm can help you fight the charges.
What The Crime Of Lewd Acts With A Minor Entails
The prosecutor must prove several elements to accuse you of the crime of lewd acts with a minor. The prosecutor should show that:
- You committed a lascivious or lewd act.
- You committed the act on the body of a minor below 14 years
- You had the intent to gratify your lust, that of the minor, or another person’s lust
You can commit this offense if you intentionally touch a child’s body. You may also face charges for intentionally causing the child to touch their own body, your body, or the body of another person.
Committing An Offense Willingly
What does it mean if the prosecutor states that you acted willfully?
This means that you committed the crime or violated the law on purpose. Acting willfully doesn't mean that you intended to harm another person, break the law or gain any advantage. You would not face charges if you had accidental sexual contact with a child. For instance, if you accidentally touched a child's sexual organ, the prosecutor cannot accuse you of committing a crime.
What Does Touching Mean
What is the legal meaning of touching under PC 288?
You can't violate PC 288 unless you touch any part of a child's body or you make the child touch someone else. It’s important to note that you don’t need to have touched the child on the sexual organ or the skin. The touch could be on any body part as long as it has a sexual intent. The touch can also be on the bare skin or through the child's clothing. The prosecutor doesn't have to prove that actual arousal occurred for you to face charges under PC 288. The law only requires the prosecutor to show that the touch was on purpose and with the intent of fulfilling a sexual desire or causing arousal.
Lewd Act With A Minor Through Force Or Fear
You will face enhanced penalties if you commit the crime of lewd acts with a minor through fear and force as outlined by the California PC 288(b)(1). You will face enhanced penalties if the prosecutor proves that you accomplished the crime through force, coercion, violence, menace, or threats of immediate bodily harm on the child or another person. According to PC 288(b)(1), the force used to accomplish the crime must be different and more significant than the unlawful touching act. For instance, if the defendant slaps the victim to comply with their demand, the defendant has used force that is not part of the wrongful touch itself. This use of force subjects the defendant to enhanced penalties.
You might have accomplished the lewd act with a minor through fear if the victim was significantly afraid. The child was unreasonably scared, and you knew and took advantage of this fear. You could also have accomplished the crime through duress if you made implied or direct threats of force, danger, violence, retribution that is enough to make a reasonable person submit to something they would not otherwise give in to. When determining whether the defendant used duress, the prosecutor will consider the totality of circumstances. For instance, the prosecutor will consider if you made threats to inflict harm on the victim.
The prosecutor will also consider whether you physically controlled the victim when the victim attempted to resist your demands. Other factors that the prosecutor will consider are whether you issued warnings to the victim that revealing the molestation would jeopardize their family. The judge will consider several factors when determining whether you accomplished lewd acts with a minor through duress:
- The child’s age
- The defendant’s relationship with the child
- The age difference or difference in size between the defendant and the victim
- The location where the crime occurred
Accomplishing The Crime Through Menace
The defendant could also have accomplished the crime of lewd acts with a minor through menace. This means that the defendant made a statement, a threat, or acted in a manner showing their intent to harm another person. For instance, the defendant may have told the victim that they will hurt the victim’s family if they do not touch their private parts. Even if the defendant was making an idle threat, they still used the threat to commit sexual exploitation on the child.
Proving Sexual Intent
One of the essential elements of the crime of lewd acts with a minor is sexual intent. Sexual intent is one of the most challenging elements to prove. Whether or not the defendant acted with sexual intent is for the jury to decide. The jury will consider several factors in determining whether the defendant had a sexual intent:
- The context in which the defendant touched the minor
- Whether the victim and the defendant know each other
- The nature of the touch
- Whether there is an innocent explanation
The Penalties For Violating PC 288
What are the penalties for committing the crime of lewd acts with a minor? The punishment for violating PC 288 will vary depending on several factors:
- The victim’s age
- Whether the defendant used force or threats
- The defendant’s criminal history
Several punishments could result from the violation of PC 288. You will face felony charges if you violate PC 288 and the victim is less than 14 years old. You would face felony charges under PC 288(a) if there were no use of force or violence while accomplishing the crime. The possible consequences for violating PC 288 could include:
- Imprisonment in a state prison in California for three, six, or eight years
- The court may require you to pay a fine not exceeding $10,000
The judge may also recommend probation and a jail time of up to one year. Even if the court suggests probation instead of jail time, the violation of PC 288 is still a felony.
How does the court determine eligibility for probation instead of jail time?
The court will consider various factors before recommending formal (felony) probation. The factors include the facts of the case and the defendant’s criminal history. When the judge recommends felony probation, the defendant will have to comply with several probation conditions. If the defendant violates the probation conditions, the court may revoke the probation and recommend imprisonment.
Consequences for Violation of PC 288(b)(1)
You will face enhanced penalties if you commit the crime of lewd acts on a child below 14 using force, coercion, violence, or threats. The possible consequences for the violation of PC 288(b)(1) are:
- Imprisonment of five, eight, or ten years in state prison
- A fine not exceeding $10,000
If you violate PC 288(b)(1), you will not be eligible for probation. Instead, the court will automatically sentence you to prison.
When Violation Of PC 288 Results In Bodily Injury On A Victim Below 14
The penalties for lewd acts with a minor could increase significantly if the victim suffers significant bodily injury. If a victim below 14 years suffers physical harm, the punishment will increase to 25 years to life imprisonment as outlined under PC 667.61(d)(7). The defendant could face a life sentence if they inflict bodily harm on a victim below 14 as outlined by PC 288(1). In addition, the infliction of significant physical injury could lead to a five-year sentence enhancement as outlined by PC 12022.8.
What does great bodily injury or bodily harm mean according to the above statutes?
It means that the victim suffered substantial bodily injury or harm due to the defendant's actions. If you inflict physical injury on a child below 14 while committing the crime of lewd acts with a minor, the prosecutor may charge you with any of the three offenses listed above. Therefore, inflicting physical harm on a child while committing lewd acts on a minor could lead to a penalty enhancement of five years to life imprisonment.
When The Victim Is 14 Or 15
As outlined by the California PC 288(c)(1), it is a crime to commit a lewd act on a victim 14 or 15 years as long as you were at least ten years older than the victim when you committed the crime. The violation of PC 288(c)(1) is a wobbler under California law. This means that the prosecutor may charge a violation under PC 288(c)(1) as a felony or misdemeanor. When deciding whether to charge the crime as a misdemeanor or a felony, the prosecutor will consider the facts of your case and your criminal history. If the prosecutor charges a violation of PC 288(c)(1) as a misdemeanor, the consequences will include a jail time of up to one year in county jail. Even if the prosecutor charges the violation of PC 288 as a misdemeanor, the defendant may still have to register as a sex offender. If the prosecutor charges the violation of PC 288(c)(1) as a felony, the penalties will include a jail time of 16 months, two years, or three years in a California State prison. The judge may also recommend probation and a jail time of up to one year in county jail.
When The Victim Is 16 Or 17 Years
What happens if the victim was 16 or 17 at the time of the crime?
The defendant would not face charges under PC 288 if the victim were 16 or 17 at the time of the offense. Instead, the defendant will face charges under:
- PC 261.5 — California statutory rape law or
- PC 243.4(a) — California sexual battery law.
Committing A Second Or Subsequent Violation Of PC 288
What happens when the defendant commits a second or subsequent violation of PC 288?
If you have a prior conviction under PC 288 and commit an additional offense, you could face charges under PC 667.71(b), California habitual sex offender law, alongside prosecution under PC 288. The punishment for habitual sex offenders ranges from 25 years to life imprisonment.
Additional Punishment For Violating PC 288
Besides fines and imprisonment, people convicted of violating PC 288 could face some additional charges. The other charges for a conviction of lewd acts with a minor may include:
- Having to register as a sex offender in California
- Payment of restitution to the victim for the medical and psychological losses the victim may have faced
- The loss of your professional license, including a license to practice law or medicine
Any person convicted of lewd acts with a child must register as a sex offender. The judge can't use their discretion to exempt the defendant from registration as a sex offender. However, with the help of an experienced criminal defense attorney, you can negotiate with the prosecutor to reduce your charges to a lesser offense that does not require registration as a sex offender. For instance, the prosecutor may reduce your charges to the simple battery under PC 242.
In the past, anyone who committed the crime of lewd acts with a minor had to register as a sex offender for life. However, from January 1, 2021, sex offender registration was divided into three tiers based on the nature and the severity of the crime. If you commit a second or a subsequent crime of lewd acts with a minor under PC 288(a), you must register as a sex offender for life. You also have to register as a sex offender for life for any conviction under PC 288(b) (i). A first–time offender under PC 288(a) must register as a sex offender for 20 years, which is tier two sex offender registration.
Fighting Lewd Acts with Minor Charges
There are several ways of fighting lewd acts with a minor charge under PC 288. It is important to note that a child's consent to your actions cannot serve as a defense under PC 288(a). According to California law, a minor does not have the legal capacity to consent to lewd acts or any other sexual act. An experienced criminal defense attorney will evaluate all the facts of your case and create an effective defense strategy. Some of the typical defenses for fighting lewd acts with a minor charge include:
The Victim Is Lying
The prosecutor bases their case on the child's credibility. Therefore, you can't face charges if you manage to prove that the child is lying. This defense may apply if there is no physical corroboration or a confession. The criminal defense attorney will use several strategies to determine whether the child is lying. For instance, the attorney may consider the victim's medical records, school counseling records, social networking accounts, and emails. The attorney may also interview the victim's family members, schoolmates, friends, or online contacts.
Your attorney will also conduct a comprehensive background check on the victim and the alleged witnesses. For example, in some cases of lewd acts with a minor, it might turn out that the child has been coached to accuse the defendant or provide a biased statement falsely. Your attorney might also discover that the victim has a history of accusing people falsely. If your attorney manages to prove these facts in court, it will go a long way in questioning the victim's credibility and the prosecutor's evidence.
You Are A Victim Of Mistaken Identity
You can also fight lewd acts with a minor charge by pointing out that you are a victim of mistaken identity. The child may be confused and identify the wrong person, especially if you have some physical resemblance to the perpetrator. The cases of mistaken identity are prevalent if:
- The perpetrator of the crime is unknown or unfamiliar to the child
- The perpetrator touched the child in a foreign or a dark location
- The perpetrator was of a different race than the defendant
- The child was relatively young
An experienced attorney will investigate the circumstances under which the crime took place. Your attorney could also consider the facts that might undermine the child’s identification of the defendant.
You Touched The Child Accidentally
You should only face charges for lewd acts with a minor if you touched the child intentionally. The prosecutor should prove that you touched the child on purpose or made the child touch themselves intentionally. You could also have made the child touch another person on purpose. You are not guilty under PC 288(a) if the touch was accidental. If contact is random, it is not meant to arouse any party sexually.
Lack Of Sexual Intent
The California PC 288 makes it a crime to touch a child intentionally to arouse yourself or the child. You can't face charges for lewd acts with a minor if you did not have the sexual intent. For example, you may have noticed a rash on the child's sexual organ and touched them to examine it. In this case, you wanted to determine the extent of the rash and not arouse the child or yourself. Therefore, the prosecutor cannot accuse you of lewd acts with a minor.
The Minor Is Not Within The Age Criteria Outlined By The Law
California law outlines two types of illegal child molestation under PC 288. First, it is unlawful to engage in a lewd act with a child below 14 years. Second, it is also an offense to engage in lewd acts with a minor who is 14 or 15 years or at least ten years younger than you. Therefore, you cannot face charges under PC 288(a) if the victim is 14 or 15 years and less than ten years younger than you. You also cannot face charges if the minor is older than 15 years. However, you may still face charges under other statutes like sexual battery under PC 243.4 or statutory rape under PC 261.
You Were A Victim Of Unlawful Search
If the police subjected you to an unlawful search or seizure, you could use it to fight charges under PC 288. The police tend to be over-vigorous in prosecuting sexual offenses against children. The police may violate your constitutional rights as they try to obtain evidence against you. An experienced attorney can file a motion in court to have all the illegally –obtained evidence excluded from your case. The police can violate your constitutional rights by:
- Subjecting you to an illegal search or seizure
- If the police engage in police misconduct, including planted evidence and false testimony
- Police entrapment
- Coerced confession
When The Defendant Confesses To The Crime
At times, the defendant may confess and admit that they committed lewd acts with a minor. In this case, the criminal defense attorney will not try to argue and prove that the crime did not happen. The attorney will strive to show that the charges resulted from an isolated incident and the defendant is not likely to repeat the offense in the future.
Your attorney will focus on your good character and other factors that could serve as mitigating factors. If your attorney is successful, the judge may recommend probation instead of jail time. Before the judge grants you probation, they will request a mental evaluation report under PC 288.1. An experienced psychiatrist or psychologist conducts this evaluation. The purpose of this evaluation is to determine if the defendant is likely to repeat the offense again and whether the defendant is a threat to other children. The law doesn't require the judge to request a PC 288.1 report, but the judge may request the report at their discretion.
Find A Criminal Defense Attorney Near Me
If you or your loved one face lewd acts with a minor charge, you should not hesitate to contact Riverside Criminal Defense Attorney Law Firm. Our experienced criminal defense attorneys will investigate your case and help you create a convincing defense to fight your charges. Contact us at 951-946-6366 and speak to one of our attorneys.