Penal Code 288.2 PC - Sending Harmful Matter to Seduce a Minor
California Penal Code 288.2 PC makes it a crime to send, distribute, or exhibit harmful or obscene material to a minor under 18 when the purpose is to arouse and seduce the minor sexually.
This unlawful conduct can occur over the internet, by mail, or by any other delivery method. Harmful material includes matters depicting a minor or minors engaged in sexual contact.
Penal Code 288.2 also has an intent requirement, meaning the perpetrator must have sent or distributed the harmful material to arouse, appeal to, or gratify the sexual desires of the minor or themselves.
PC 288.2 says, “(a) (1) Anyone who knows, should have known or believes someone is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit, including by physical delivery, electronic communication, or in person, any harmful matter depicting a minor engaging in sexual conduct, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touches an intimate body part of the other.”
In other words, Penal Code 288.2 PC is directed at criminalizing the inducement of minors to engage in sexual conduct with adults via sending harmful material to those minors.
With the continued advances in internet technology, there is an effort to address the growing concern over using obscene or indecent materials such as "sexting" to seduce minors. Let's review this law in more detail below.
What Does the Law Say?
As noted, Penal Code 288.2 PC defines the crime of sending harmful matter to seduce a minor.
To convict a defendant of violating this statute, the prosecutor must be able to prove all the elements of the crime listed in California Criminal Jury Instructions 1140, which include that the defendant:
- knowingly distributed, sent, exhibited, or offered, harmful matter to a minor by any means;
- knew they were a minor or failed to exercise reasonable care to determine the age of the recipient;
- had the specific intent to arouse the lust, passions, or sexual desire of themselves or the minor;
- had the specific intent to seduce the minor, which means to entice the minor to engage in physical and sexual activity.
Further, it must be proven that the material in question could be harmful, which needs to meet the following criteria:
- the material offensively showed sexual conduct;
- a reasonable person would believe it lacks any artistic value, and
- an average adult would believe it appeals to prurient interest.
The term “prurient interest” is defined as a shameful interest in nudity or sex. The obscene material under PC 288.2 could be pictures, videos, drawings, magazines, videos, or printed material.
What Are the Penalties for PC 288.2?
Suppose the harmful material sent to the minor depicts a minor engaged in sexual contact. In that case, it can be filed as either a misdemeanor that carries up to a year in the county jail or a felony punishable by two, three, or five years in state prison.
A PC 288.2 felony conviction will carry a mandatory duty to register as a California sex offender under Penal Code 290 PC. This is known as the Sex Offender Registration Act requiring someone convicted of specific sex crimes to register as a tier three lifetime sex offender.
What Are the Related Crimes?
- Penal Code 288.3 PC - Contacting a Minor to Commit Felony;
- Penal Code 288.4 PC – Arrange a Meeting with Child;
- Penal Code 311 PC – Child Pornography;
- Penal Code 647.6 PC – Annoying or Molesting a Child;
- Penal Code 288 PC - Lewd Acts with a Minor;
- Penal Code 646.9 – Cyberstalking.
What Are the Defenses for PC 288.2?
The criminal court building (CCB) in downtown Los Angeles at 210 West Temple, known as the Clara Shortridge Foltz Criminal Justice Center, prosecutes most cybercrimes crimes where people are on the internet either downloading child pornography, talking in chat rooms with underage individuals, trading child pornography on kick apps or other applications on the internet.
They've got special units in the district attorney's office at the CCB courthouse that all they do is handle these cases. So, if you or a loved one is arrested and charged with an internet sex crime and your case is pending in CCB, you've come to the right place.
I've defended cases at the CC courthouse since the early 1990s. I've worked for the district attorney's office, I've worked for a superior court judge, and then I've worked for people just like you since 1994, handling these types of cases at the CCB courthouse.
The first thing the prosecutors have to prove is that you are the one that is involved with an internet sex crime. You're talking to the undercover police officer or trading child pornography. You're the one that is using the application related to sex-related offenses – whatever the case may be. So, that's one thing we have to look at:
- Do they have the proof?
- Do they have the evidence to prosecute you for this type of crime?
If they have the proof, we must discuss the available defenses. If there are defenses available, we can put together a strategy.
We can get a forensic expert to look at the evidence the prosecutors are claiming they have, and then we'll discuss the best solution moving forward.
Are we going to fight the case, or are we going to negotiate the case? Suppose we're going to negotiate the case.
In that case, we want to sit down and talk about it and decide what type of a mitigation package we might be able to put together to convince the prosecutors either to give you a lesser crime to try to avoid sex registration which is a big thing with these type of cases; to try to avoid prison time.
We've got to look at all the angles that might be available if you're being charged in CCB with an internet sex crime.
So, pick up the phone now. Ask for a meeting with Ron Hedding. I stand at the ready to help you. The Hedding Law Firm is located in Los Angeles, CA, and offers a free case review by phone or using the contact form.