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What Are the Best Defenses Against Lewd Acts with a Minor?

Posted by Ronald D. Hedding | Sep 01, 2022

California Penal Code 288 PC is the statute that makes it a crime to engage in any lewd or lascivious act with a minor under 14, described as indecent acts or of a sexual nature.

PC 288 lewd and lascivious acts with a minor are often called child molestation. Lewd and lascivious conduct is described as:

  • Sexual conduct that is offensive to common standards of behavior;
  • Conduct that has immoral sexual intent or behavior.

PC 288 lewd acts typically refer to a crime when an adult has sexual contact with a minor child, either touching them for sexual gratification or causing them to feel themselves.

A Penal Code 288 PC lewd acts when a minor under 14 years old is always a felony offense and considered a “strike” under California's three strikes law.

Any person who engages in sexual activity with a minor under 18 can be prosecuted for sexual-related crimes because minors can't give sexual consent under California law.

Lewd and lascivious conduct is also described as sexual activity appealing to the perpetrator or victim's lust, passions, or sexual desires.  Lewd behavior usually requires some physical contact but no penetration. 

To be convicted of PC 288 lewd acts with a minor, the prosecutor must prove beyond any reasonable doubt all the “elements of the crime” listed under California Criminal Jury Instructions 1110. Our sex crime defense lawyers will review this law further below.

Can Prosecutors Prove Their Criminal Case?

This is a severe charge, and if you or a loved one is charged with you, you want to do whatever you can to defend yourself and mitigate the circumstances. 

Of course, first, you will have to decide whether or not the authorities have the evidence to prove the case against you or a loved one.  If they do, then certainly some strategies might be employed. 

For example, you are getting a 288.1 report from a psychologist or a psychiatrist that assesses your likelihood of being a recidivist. 

In other words, whether or not you might do something like this again in the future.  They can also perform a Static 99, where again, they're checking to see and running tests on whether or not you are likely to repeat this behavior in the future.  That's one of the things that can be done to try to mitigate the circumstances related to a Penal Code Section 288 charge. 

What are the Punishments for PC 288 Lewd Acts with a Minor?

A violation of Penal Code 288 PC is a “wobbler” that can be charged as a misdemeanor or felony crime.  The prosecutor will consider different factors to decide how the file the case:  

  • Minor's age;
  • Age difference between perpetrator and the minor;
  • Whether force or threat of harm was used;
  • Perpetrator's criminal record.

If convicted of PC 288 as a misdemeanor, you are facing:

  • Up to one year in county jail,
  • A fine of up to $1,000.

If convicted of a PC 288 felony lewd acts with a minor, you are facing:

  • One, two, or three years in state prison
  • A fine of up to $10,000.

If the minor was under the age of 14, you are facing:

  • Straight felony conviction which can't be reduced;
  • Three, six, or eight years in California state prison.

A lewd or lascivious act can be as simple as touching their private area, buttocks, or female breasts, but the more aggravated cases involve oral copulation and sexual penetration. 

In PC 288 cases where force, violence, or threats are used to accomplish the lewd acts, the punishments will increase to 5, 8, or 10 years in state prison, and a fine of up to $10,000

Enhanced penalties apply when the minor victim is a dependent for whom the defendant was charged with acting as a caretaker. If you are convicted under Penal Code 288(b)(1), you will not be eligible for probation and must be sentenced to state prison.

What are the Related California Crimes?

Taking the Lewd Acts with a Minor Case to Trial

Suppose the authorities don't have the evidence against you, and there are no witnesses or physical evidence, and you're indicating that you're innocent.

Taking the Lewd Acts with a Minor Case to Trial

In that case, you can take the case to trial and prove to a jury that you did not commit the charges that the prosecutors claim you did. 

Of course, before you would do something like that, you would want to consult with an attorney who's got experience, handled these cases before, and knows what it takes for the prosecutors to get a conviction. 

Because if you go to trial and lose, you're much more likely to get a gigantic sentence by the judge where you face many years in prison versus many times these cases can be mitigated, and you can get a much lighter sentence.

One big thing you're looking at when it comes to lewd and lascivious conduct with a minor under the age of 14 is lifetime registration as a sex offender, and you'd certainly be on the Megan's Law website, where people can see that you've been convicted of this Penal Code Section 288. 

That's a significant punishment that comes along with that particular conviction.

Initial Defense Strategy Meeting

I typically will have the client and the family come in and discuss some ideas about defending these cases.  Of course, not all cases are the same.

Defense Strategy Meeting for Sex Crime Charges

Your case is unique.  You as a person are unique, so we have to look at all of the facts and details related to your case in deciding the best strategy for you and your situation. 

Indeed, seeing if you have a prior criminal record is relevant; what you're doing for a job; whether you have any prior sex-related offenses – these are all things judges and prosecutors are going to look at in assessing what to do when you're charged with lewd and lascivious conduct with a minor under the age of 14 under Penal Code 288 PC.

What I have you do is come in for a meeting.  You'd have to call and ask for a meeting with Ron Hedding, and then I will put my experience to work for you. 

I've worked for the DA's office in east LA and then for a superior court judge, and finally, I've been defending people just like you since the early 1990s. So, pick up the phone now and call the Hedding Law Firm.  Ask for a meeting with Ron Hedding.  We offer a free case evaluation via phone or fill out the contact form.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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