We get a lot of calls from people asking whether or not they can have consensual sex or engage in some sort of physical sexual activity with somebody under the age of 18 if that person agrees, and of course, in California the answer is no.
So, if you touch anybody in a sexual way or have sex with somebody that is under the age of 18, then the prosecutors throughout California are going to prosecute you for a Penal Code Section 288 – Lewd and Lascivious Conduct with a Minor.
Typically, the prosecutors are going to try to put you in prison, make you register as a sex offender and there's a whole host of other things that they can do and there's also a lot of factors that they look at.
They're going to look at the age difference between the victim and the defendant. Obviously, if it's a boyfriend/girlfriend and there's a year or two age difference, that's going to be a huge difference than a scenario where there's an adult in his 20's or 30's having sex with a 16 year old.
PC 243.4 Sexual Battery Between Two Adults
Then you spin over to sexual battery. That's usually going to occur between two adults. It's not obviously going to be the same punishment that is carried by a violation of touching somebody under the age of 18.
A lot of times, Penal Code Section 243.4 – Sexual Battery charge will be charged as a misdemeanor, but unfortunately, you still have to register as a sex offender, even with a sexual battery.
So, a lot of times we get clients charged with sexual battery and we're trying to convince the prosecutor if they have evidence that the person committed the crime, to give them something other than a sexual battery so they can void the sex registration that comes along with that.
PC 288a Lewd Conduct with a Minor
So, the difference between sexual battery and lewd and lascivious conduct with a minor — Penal Code Section 288A — is that in the sex with a minor or sexual touching of a minor situation, there's somebody under the age of 18; whereas, with the sexual battery situation both parties are typically going to be over the age of 18. That's a big distinction.
In one scenario, the person is charged with a misdemeanor and not looking at prison time and in the other scenario, the person is going to be charged with a felony and will be looking at prison time, with not much wiggle room if the prosecutors believe they can prove that you touched a minor in a sexual manner.
And then of course, there's the touching a minor in a sexual manner, where they're going to look at the age of the minor. They're going to look at how long the touching went on. There's also other allegations, like a Penal Code Section 288.5 which is continuous sexual touching of a minor. That can carry a sentence where you could potentially end-up in prison for the rest of your life.
So, you start to see that the big distinction is the age. The legislature, prosecutors and judges don't want minors being taken advantage of for obvious reasons. That scars them when somebody sexually assaults them, especially when they're under the age of 18. The younger the person and the older the defendant, the more likely the prosecutors and judges are going to seek prison and put that person away for a long time.
Retain a Sex Crime Defense Lawyer
So, if you're charged with either sexual battery or touching a minor in a sexual way, you want to get to an attorney as fast as possible. Make no statements to the police. Let the attorney guide you through the process and figure out the best strategy to employ, and it's not the same strategy all the time.
I get calls all the time and people say, well I called this law office and this is what they told me was going to happen, and this is what they told me what my punishment was going to be or they said they could get the case dismissed, or whatever representation is made it's not a real representation because that person doesn't have all the details.
In order to really evaluate any criminal case, and specifically, a sexual battery or a situation where someone's charged with Penal Code Section 288A, you've got to have all the details — not just the details from your client, but the details from the police.
The police report where it lays out what the alleged victim is claiming and lays out what any potential witnesses might be saying, and it will also give you any evidence that might be available.
You don't want to make a hasty judgment. You want to make sure that you make the right moves at the right time and the only way to do that is to hire a criminal defense attorney that has a lot of experience defending sex crimes, and if it's an argument between a sexual battery and lewd and lascivious conduct with a minor, obviously you want to get the best attorney you can find.