An accusation of committing a lascivious act with a child is a serious allegation. Engaging in lewd acts with a minor is a sex crime under Penal Code 288. Individuals engage in a lewd act with a child when he/she touches a child below 14 years of age to sexually gratify themselves, the child, or a third party. The offense is a felony punishable by up to eight years in prison and possible life imprisonment if the child sustained bodily harm during the commission of the crime.
An allegation of engaging in lewd conduct with a minor has far-reaching implications. The allegation itself generates public condemnation. It is possible to lose friends, support from colleagues and family, and your job. Couple that with a conviction, and your future suffers significantly. When accused of a PC 288 violation, seek legal assistance to fight the charges. At Los Angeles Criminal Attorney, we are ready to help.
Lewd Acts With a Minor Under California Law
Criminal prosecution originates from an accusation filed against a defendant. The allegations point to the defendant engaging in sexual conduct with the child. Actions, including touching a child’s genitals and breasts or kissing a child’s inner thighs to achieve sexual gratification, are some examples of acts that will result in prosecution under PC 288.
PC 288(a) defines lewd conduct with a minor as willfully engaging in acts that are sexual with a child below 14 years of age to appeal to, arouse, or sexually gratify the child, yourself, or another individual.
Whereas PC 288 is specific to 14 years, the legal definition of a minor is not lost. Minors, under the law, are people less than 18 years of age. You will face prosecution for engaging in lewd behavior with children aged 15, 16, or 17 years. PC 288 is particular for children aged 15 years or less.
Lewd or lascivious conduct means sexual acts that appeal to the passion, lust, or sexual desires of the victim of the defendant. Lascivious conduct requires physical contact but not penetration. It can be through bare skin or indirectly through clothing.
Elements of the Crime
Prosecutors should establish particular elements of the crime to prove the case beyond a reasonable doubt. Only then can the jury find you guilty. The prosecutors must demonstrate:
- You willfully touched or caused a minor to touch his/her body, your body, or another individual's body, either through clothing or bare skin.
- You acted to arouse, appeal to, or gratify a passion, lust, or sexual desire of the minor, yourself, or another person.
Let us look at each element in detail.
When individuals act willfully, they are deliberate. However, willful action does not necessarily mean an intention to break the law, gain an undue advantage, or harm the victim.
Willful action rules out accidental touching. If you touch the child accidentally, you have no intention of doing so. This means you are not guilty of a PC 288 violation even if you touched a sexual organ.
You must touch any part of the child’s body and cause the child to touch him/herself or another for you to be guilty of lewd conduct with a minor.
Under Penal Code 288, touch is not limited to contact with a sexual organ. It can be any part of the body. Further, the contact can be direct through bare skin or indirect through clothing.
Note: Courts do not require arousal for a guilty verdict. Courts focus on the intent of a defendant’s actions. The jury would find you guilty if the touch was deliberate and intended to arouse or satisfy a sexual passion or desire.
Proving intent is difficult in most criminal cases. Sexual intent is a question of fact for the jury to decide. The jury takes into account all the facts in the case, including:
- The nature of touch
- The context in which the touching occurred
- Whether the defendant and the child knew each other, and
- The explanation the defendant gives for the contact and whether the touch was innocent
Lewd Acts With a Minor Using Intimidation
You violate Penal Code 288(b)(1) when you use coercion, force, violence, menace, or fear of immediate harm to the victim or another individual while engaging in lewd conduct with a minor. These acts result in harsh sentences.
PC 288(b)(1) singles out force, menace, fear, and coercion. It is essential to understand their meaning.
PC 288(b)(1) requires the force used to be greater than or substantially different from the wrongful touching act.
For example, Josh grabbing Peter’s penis violates PC 288(a) since the wrongful act is grabbing Peter’s penis.
However, if Josh punches Peter to have him remove his pants so that he can grab Peter’s penis, he uses force different from the wrongful act. Thus, Josh violates PC 288(b)(1).
Legally, a menace is a statement, threat, or act displaying an intent to injure another.
For example, Barry, Camile’s uncle, threatens to hurt his nephew, Camile’s younger brother, if she does not undress for him to touch her. The threat could be idle. However, Barry used menace to accomplish his objective.
Fear is established by considering whether the child was reasonably or actually afraid or whether the defendant knew of the child’s unreasonable fear and he/she took advantage of it.
Duress or coercion is the implied or direct threat of violence, force, retribution, or hardship sufficient to cause a reasonable individual to submit to or act in a manner he/she would not have otherwise submitted to or done.
Courts examine the totality of the facts of the case to establish the existence of duress. The issues considered include but are not limited to the following:
- Physical control of the victim if the victim attempts to resist
- Threats of harming the victim or a victim’s loved one
- Warnings to the minor against revealing the defendant’s actions to anyone or risking harm to the individual they confide in
- The location where the lewd acts occurred
- The victim’s age
- The difference in body size between the defendant and the victim
- The relationship between the minor and the defendant
Lewd Acts With a Minor and Causing Bodily Injury
Further, if the victim sustained injuries due to the lewd conduct, the defendant will receive a life sentence, according to PC 288(i), with the possibility of parole. This section requires that the victim be physically harmed during the encounter. Some of the defendant’s actions considered by the courts include:
- Forcefully pinching the victim’s breasts
- Physically striking the victim
- Squeezing a young boy’s genitals, thus causing him to suffer pain
Defenses You Can Assert
Fortunately, you can challenge allegations of lewd conduct with a minor. Contact an experienced defense attorney for assistance. They will evaluate your case and formulate an ideal defense strategy based on the circumstances of your case.
Note: A child’s consent is not a defense. Legally, minors cannot consent to sexual acts.
Your Accuser is Mistaken
There are instances where the child was touched inappropriately but misidentified the defendant as the perpetrator. Various issues cause misidentification. Your attorney will introduce any of the following as a possible cause of your being mistaken for the perpetrator.
- The child was very young. Thus, his/her recollection of the perpetrator cannot be relied on.
- The minor was touched in a crowded, dark, or unfamiliar location, making identification of the offender difficult.
- The minor gave a general description of the perpetrator, and you were identified as the possible culprit based on the description — Misidentification because a broad description is expected, especially if the defendant is of a similar race. Additionally, once the case is reported, known sex offenders in the area are the prime suspects.
No Intent to Arouse
One of the elements prosecutors must demonstrate to secure a conviction is an intent to arouse the minor, another individual, or yourself. If you had no intention of sexually arousing or gratifying yourself, the child, or another individual, you are not guilty of lascivious conduct with the minor. Your case will be dismissed if you had no intent to arouse.
You Were Falsely Accused
Cases of lewd conduct involving minors rely on a child’s testimony. Thus, his/her credibility is pivotal in the case. Prosecutors will rely on the child’s testimony, especially if there is no physical evidence, no confession by the defendant, or corroborated testimony from witnesses.
Defense attorneys use different strategies to ascertain a child’s credibility. The attorney could:
- Conduct a thorough background check on your accuser and any witnesses.
- Subpoena your accuser's counseling, medical, and school records to establish if the child has a pattern of deceit or any medical condition likely to influence his/her lying behavior. To this end, attorneys will also subpoena emails and chat on social media accounts.
- Interview your accuser’s friends, schoolmates, online contacts, and family.
The investigation will reveal your accuser’s bias or instances where he/she was coached to falsely accuse you. This approach undermines your accuser’s credibility and the prosecution’s case.
You are a Victim of an Illegal Search
The growing advocacy for child protection puts immense pressure on officials to convict individuals accused of child-related offenses. Because of the stress, officials could violate a defendant’s rights to secure his/her conviction.
Note: A push for child safety does not remove the presumption of innocence until otherwise proven. Neither does it allow an infringement of your Fourth Amendment rights.
The Fourth Amendment protects individuals from illegal search and seizure. This means that a police officer can only conduct a search on your premises or person if he/she has a search warrant. Further, officers should search the target area within the provisions stated in the warrant. Failure to do so makes any evidence obtained from the investigation inadmissible.
Further, officials could violate your rights through police misconduct, entrapment, or coerced confessions. Your attorney would provide evidence to demonstrate how police officers violated your rights.
A judge would dismiss the charges if the prosecutor or police officer violated your rights.
The Touch Was Accidental
PC 288 requires an intentional touch by the defendant for a conviction. Prosecutors bear the burden of proving willfulness in your action. However, if you accidentally touched the child, you are not guilty of a PC 288 violation.
The Minor Did Not Fit the Age Criteria of the Offense
PC 288 only outlines penalties for offenders if the victim is a minor:
- Aged 14 or younger, or
- Aged 14 or 15 and is at least ten years younger than the defendant.
You are, therefore, not guilty of a PC 288 violation if the child is 15, 16, or 17 years old. Further, you are not culpable under PC 288 if the minor was 14 or 15 years old at the time of the offense and you are less than ten years older than the child.
Though you could not be guilty of a PC 288 violation, the prosecution could seek a conviction for sexual battery or statutory rape.
Penalties Upon Conviction For Lewd Acts With a Minor
Convictions for PC 288 violations result in varying penalties depending on the child’s age, the defendant’s criminal history, and whether the defendant used intimidation tactics like using force or threats.
- The Minor is 14 Years Old or Younger, and You Did Not Use Force or Threats
If the child was 14 years old or younger at the time of the lewd act, the offense violates PC 288(a). A conviction results in the following felony penalties.
- Three, six, or eight years in prison, or
- Probation and a maximum of one year in jail, and
- A maximum fine of $10,000
Note: Even if the judge grants probation as an alternative to the prison sentence, the offense remains a felony sex offense.
- Lascivious Conduct Achieved by Threat or Force Against a Minor Under 14 Years
Using force, threats, violence, or coercion to or while engaging in lascivious conduct with a child below 14 violates Penal Code 288(b)(1).
Convictions for PC 288(b)(1) violations result in:
- Five, eight, or ten years in prison, and
- A maximum fine of $10,000
Note: Defendants convicted of PC 288(b)(1) violations do not qualify for probation.
- Lascivious Conduct Resulting in Physical Harm to the Victim Under 14 Years
Penalties for lascivious conduct with minors increase significantly if the defendant harms the victim. If convicted, your sentence will be based on the law you violated.
- If you inflicted the injuries sustained by the victim, you would receive 25 years to life per Penal Code 667.61(d)(7).
- If the jury determines you violated PC 288(i) by inflicting bodily harm to a minor below 14 years, you will receive a life sentence.
- A 5-year sentence enhancement for causing great bodily harm to the victim.
- If the Child Was 14 or 15
Penal Code 288(c)(1) specifically addresses the penalties for lewd conduct with children aged 14 or 15 years, and the defendant was at least ten years older than the victim at the time he/she committed the crime.
A violation of PC 288(c)(1) is a wobbler offense. Prosecutors can charge you with a misdemeanor or felony violation based on the case's facts and your criminal past.
If convicted of a misdemeanor violation, you will be sentenced to one year in jail and be required to register as a sex offender. If convicted of a felony charge, you will receive a 16-month, 2, or 3-year prison sentence. Felony PC 288(c)(1) felony offenders are probation candidates.
- If the Minor Was 16 or 17
In cases where the victim was 16 or 17 years old when the offense was committed, the defendant will not be charged under PC 288. Prosecutors will seek a conviction for:
- Sexual battery, a crime under PC 243.4(b) — Convictions for sexual battery offenses will result in misdemeanor or felony penalties. Convictions for misdemeanor violations are punishable by up to one year in jail and a possible fine of $2,000. On the other hand, felony convictions result in 2, 3, or four years in prison and a maximum fine of $10,000, or
- Statutory rape, an offense under PC 261.5 — Prosecutors will pursue statutory ape charges if they believe a defendant had sexual intercourse with a child under 18 who is not his/her spouse.
Like sexual battery, statutory rape is a wobbler. Convictions for misdemeanor offenses are punishable by up to one year in jail, up to $1,000 in fines, or both. Felony violations are punishable by 16 months, 2, or 3 years in prison, up to $10,000 in fines, or both.
- Second or Subsequent Lewd Conduct With a Minor Conviction
Defendants with prior convictions for lewd behavior with minors will be prosecuted as habitual sex offenders. According to PC 667.71(b), habitual sex offenders face up to 25 years to life in prison if found guilty of the current charge.
Further Consequences of Lewd Conduct With a Minor Convictions
Convictions for lascivious conduct with minors result in additional consequences beyond fines and imprisonment. Defendants could suffer the following outcomes if convicted.
- Mandatory registration as a sex offender
- Potential loss of a professional license
- Potential payment of restitution to the victim in the form of medical treatment, both physical and psychological treatment
- Registration as a Sex Offender
Megan’s Law requires individuals convicted of lewd conduct under PC 288 to register as sex offenders. Registration is a legal and mandatory requirement. Experienced defense attorneys work to secure a plea deal that will require defendants to plead guilty to offenses that do not impose registration as sex offenders, for example, simple battery.
There are three tiers of sex offenders based on the severity of the crime.
- Tier 1 — Sex offenders in this category retain the sex offender tag for 10 years. Tier 1 offenders are defendants convicted of lower-level sex crimes, including misdemeanor sexual battery.
- Tier 2 — First-time offenders of lascivious conduct with minors under PC 288(a) fall in this category of sex offenders. The law requires Tier 2 sex offenders to renew their status as sex offenders for 20 years.
- Tier 3 — This category imposes a lifetime registration as a sex offender. Individuals convicted under PC 288 as second or subsequent offenders and individuals convicted of lewd conduct with minors and causing bodily harm (a PC 288(i) violation) fall into this category.
Statute of Limitations
The recent enactment of several laws has significantly increased the time individuals should report sex crimes against children, and prosecutors charge the alleged offenders.
Penal Code 801.1 allows for felony prosecution for lewd conduct on minors to commence any time before the victim turns 40 years old. The statute of limitations applies in the following circumstances:
- Crimes under PC 801.1 committed on or after January 1, 2015, or
- Offenses for which the statute of limitations, which was in effect before January 1, 2015, has not run as of January 1, 2015.
In practice, prosecutors pursue most violations of PC 288 as felonies. With the victim’s age capped at 40 as the time limit for when he/she can seek criminal culpability for a defendant’s actions, you can face prosecution years after the alleged offense took place. However, the longer the victim waits before reporting an alleged crime, the harder it is for the D.A. to prosecute.
Find a Criminal Defense Attorney Near Me
Early intervention is paramount due to the potentially life-changing consequences of a conviction for lascivious acts with a minor charge. Experienced attorneys can engage prosecutors early enough to persuade them to reduce or dismiss the charges. Early intervention also helps defense attorneys prepare adequately should the case proceed to trial.
Call the Los Angeles Criminal Attorney immediately if you or a loved one is accused of engaging in lewd conduct with a minor. Our team is ready to assist. Contact our team at 424-333-0943 to schedule a free case evaluation.