To prove you guilty of lewd acts with a minor under Penal Code section 288, the prosecutor must establish beyond a reasonable doubt that a) you willfully touched any part of a child’s body or that you intentionally caused a child to touch any part of his or her body; b) you did so with the intent of sexually arousing yourself or the child; and c) at the time of the alleged offense, the child was either under the age of 14 or was 14 or 15 and at least 10 years younger than you.
You act willfully when you commit the act in question intentionally or on purpose. It is not necessary for the prosecution to show that you intended to break the law or cause harm in any way. For purposes of PC 288, your contact with the child must be intentional and on purpose. Accidental touching of the child, even if it had the effect of sexually arousing you or the child, does not suffice.
“Touch the any part of the child’s body”
Touching the child’s bare skin or touching the child’s body through or over his or her clothing satisfies this element of the code section. For example, Jack caresses his stepdaughter’s feet over her long pants as she is sleeping. Jack is sexually aroused by the act. Though he did not touch her in a lascivious or lewd manner, Jack clearly intended to be aroused by the touch. Thus, his conduct fulfills the “touching” element of PC 288.
“with the intent of sexually arousing yourself or the child”
It is not necessary for the prosecutor to prove that the touching had the actual effect of sexually arousing you or the child. All that the prosecutor has to prove is that you committed the touching with the intent of sexually arousing yourself or the child. Intent to sexually arouse is difficult to prove, and often a playful or innocuous touching of a child is misconstrued as done for the purpose of sexual arousal. Note that the child’s consent to the act is not defense to a 288 offense because minors are legally incapable of giving consent.
The child’s age
Note that, unlike a “statutory” rape charge, a mistake of fact about a child’s age is no defense, even if that mistake was reasonably made.
HOW IS THE OFFENSE OF LEWD ACTS ON A MINOR INVESTIGATED BY LAW ENFORCEMENT
Many law enforcement and prosecuting agencies in California have special departments or units wholly devoted to investigating sex crimes against children. Typically, these allegations begin when a child reports the alleged act to a parent or any other adult, and that individual then reports the act to the police. Other times, the accuser is a young adult who experienced the offense as a child and reports it many years later to law enforcement. There are many reasons for this delayed response. One common reason is that the accuser was too afraid or confused at the time of the offense to report it.
Once the abuse is reported to law enforcement, a detective who has special training in dealing with child victims will interview the child. Most of these interviews are video or audio recorded, and the child’s parent or parents may or may not be present. A skilled detective and good interviewer will get the child to speak candidly without coaxing the child or putting words in his or her mouth. However, detectives in these interviews sometimes use leading questions, and do suggest responses to the child.
If the child alleges that the abuse recently took place, then a medical examination of the child will be conducted. This medical examination forensically analyzes the child’s body, clothes, and area of the alleged incident for any clue as to the alleged sexual act or DNA of the alleged offender.
Often, under the direction of the police, the child will make a staged call to the suspect. This call, known as a “pretext call,” is surreptitiously recorded and is done for the purpose of luring the accused to make incriminating statements relating to the alleged offense.
After the interview of the child and the pretext call, the police will obtain a search warrant to conduct a search of the suspect’s place of residence. The police there look for clues as to whether the alleged offense was committed and if the suspect had behaved similarly toward other children.
The police then proceed to get a confession from the suspect by interrogating him. If the suspect is in custody, the police have the advantage of deceiving him that they are on his side and that it would benefit him greatly if he agrees to speak with them. An out of custody suspect likely will have lawyered up by the time the police seek to speak with him and therefore likely will not provide a statement. Defense attorneys rightfully advise their clients not to speak to law enforcement under any circumstances even if the purpose of the statement is to proclaim one’s innocence. Anything that the suspect says to the police will be distorted, taken out of context, and used against him.
HOW TO DEFEND AGAINST A CHARGE OR ALLEGATION OF LEWD ACT ON A MINOR
Can a child fabricate such an allegation?
Lewd acts on a minor is one of the most heinous and heavily prosecuted crimes in this country. However, it does commonly arise out of distortions, exaggerations, erroneous assumptions, or outright lies that lead to the arrest or even conviction of an innocent suspect.
When a child makes an allegation against an adult, police and prosecutors have a tendency to immediately believe that child and apply no scrutiny whatsoever to the child’s claims. The entire goal and focus of the prosecuting agency then becomes building a case against the accused, without ever investigating the credibility of the accuser or the circumstances which gave rise to the allegations. Often, the reasoning behind this failure to properly investigate the motives and credibility of the accused is, “Why would a child lie?” or “how would a child know how to describe a lewd act if it actually did not happen to him or her?” But children too exaggerate, distort, and outright lie for a myriad of reasons. In the contest of a “lewd act on a child” allegation, these reasons include being brain-washed or manipulated by a parent who is trying to gain leverage against the accused in a custody battle, trying to get a step parent or disliked adult in trouble, taking revenge on an adult for multiple reasons, seeking attention by fabricating allegations that make the child the center of attention, etc.
A common assumption made by law enforcement and prosecutors is that children have no knowledge of lewd conduct or sexual activity. Therefore, if a child describes that the accused touched her in a certain sexual way, she must be telling the truth, for how else would she be able to describe such conduct. This is an erroneous assumption. Children in the modern age are inundated with sexual messages and images. From very young ages, they become attuned to sexual behavior shown on television, movies, and social media and reported by their friends at school or in the neighborhood. It is therefore not difficult to imagine a child see a sexual act on television and report that act in relation to what an adult allegedly did to her.
Defenses to a charge or allegation of lewd act on a child
- The accused had a motive to lie and lied
In cases where there is no confession from the accused or any other corroborating evidence, the prosecutor’s entire case depends on the account told by the accused—either the child or an adult reporting the alleged abuse. A skilled criminal defense lawyer should look for any and all indications that a child or reporting adult has a motive or proclivity to lie or distort facts against the accused. If the accuser is the child, it is crucial to subpoena the child’s school records, medical records, social media accounts, and interview all adults, friends, and schoolmates who know the child. If the accuser is a reporting adult, the same depth and breadth of investigation should be conducted.
- You accidentally touched the child
You cannot be found guilty of a 288 offense if the touching was unintentional or accidental. For example, as Jack is tickling his three-year-old son, he accidentally pokes his finger on the child’s genitalia. This touching was accidental. Therefore, Jack is not guilty of a 288.
- The touching was intentional but you did not intend for it to sexually arouse you or the child
You may have intentionally touched the child but you may not have done so for the purpose of sexually arousing yourself or the child. For example, Jack’s 12-year-old daughter, Janet, has a panic attack when she is triggered by a stressful situation. Since Janet was a little child, Jack developed a habit of caressing and robbing her back, and soon Jack learned that this gesture immensely calms Janet and even prevents her panic attacks. On several occasions, Jack’s estranged ex-wife sees Jack robbing Janet’s back for a long period of time and in a manner that to the naked eye might look sexual. She then reports this to law enforcement. Jack had no intention of sexually arousing himself or Janet by the conduct. He is therefore not guilt of lewd act on a minor.
PENALTIES FOR LEWD ACTS WITH A MINOR
The penalties for lewd acts on a minor depend on the child’s age. If the child was under the age of 14 at the time of the offense, the offense is prosecuted as a felony and a strike under California’s Three Strikes Law. You will be subjected to formal probation and one year in county jail, or 3, 6, or 8 years in state prison. If force or violence was used to commit the act, then you will be subject to an increased prison term of 5,8, or 10 years. If you suffered a prior conviction for a related offense, then your sentence can be elevated to 25 years to life in state prison.
If the child was 14 or 15 years old at the time of the offense, and you were at least 10 years older than him or her, then the offense is prosecuted as either a misdemeanor or a felony depending on the specific facts of the case and your criminal history. If the offense is prosecuted as a felony, you will be subjected to probation and a maximum of one year in county jail or 16 months, 2 years, or 3 years in state prison. If the offense is prosecuted as a misdemeanor, you will be subject to informal probation and up to one year of county jail.
If the minor was 16 or 17 or less than ten years younger than you, then you will be prosecuted with statutory rape, but not with lewd act on a minor. You might be alternatively charged with sexual battery under 243.4.
Duty to register as a sex offender
A 288 conviction, whether a misdemeanor or a felony, will require to register as a lifetime sex offender under Penal Code section 290.
HOW CAN WE HELP
Whether the accuser is a minor or a reporting adult, Negin Yamini will thoroughly examine her background, social medial links, and neighborhood and communal connections for any motive or proclivity to fabricate allegations against you. Even if you confessed to the police and the evidence against you is overwhelming, Negin will fight zealously to procure the best possible disposition on your behalf. This is where Negin utilizes a “mitigation” packet that seeks to show that what transpired was an isolated event, and that the sort of conduct that took place is unlikely to happen again. Negin’s “mitigation” package includes a psychologist’s professional assessment of your awareness of the wrongfulness of your conduct and your suitability for probation. The mitigation package also includes reference letters from members of your family and community who can speak to your good character.
In People v. Rene A (Case number not disclosed at client’s request), the defendant, Mr. A, was a well-respected preacher who was accused of committing lewd act on a 15 year old girl who had allegedly gone to him for spiritual guidance and advice. Mr. A was arrested and charged for the offense after a pretext call in which he incriminated himself. Mr. A hired Negin Yamini to represent him. Negin subpoenaed the young woman’s as well as Mr. A’s cell phone records, and thoroughly examined her social media. It was revealed in this investigation that the young woman had reached out and made sexual overtures to other older men, and that she had actively attempted to engage Mr. A in sexually explicit conversations and acts. While these facts constituted no defense, Negin diplomatically presented them as mitigating facts along with a compelling “mitigation” package that she compiled for Mr. A. The prosecutor ultimately agreed to probation and counseling for Mr. A. This was in stark contrast to the original offer of 2 years of state prison, a penalty that the prosecutor steadfastly pursued until Negin changed her mind.