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Harmful Matter to Minor

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 online, by mail, or by any other delivery method (electronic communications). 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) Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of 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 touch an intimate body part of the other, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or is guilty of a felony, punishable by imprisonment in the state prison for two, three, or five years.

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 Factors Must Be Proven?

As noted, Penal Code 288.2 PC defines the crime of sending harmful matter to seduce a minor. No physical contact needs to occur. To convict you 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 the following: 

  • You knowingly distributed, sent, exhibited, or offered harmful matter to a minor by any means,
  • You knew they were a minor or failed to exercise reasonable care to determine the age of the recipient,
  • You had the specific intent to arouse the lust, passions, or sexual desire of themselves or the minor,
  • You 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 a private 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 tier-three 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.

Section (2) of PC 288.2 says, "If the matter used by the person is harmful matter but does not include a depiction or depictions of a minor or minors engaged in sexual conduct, the offense is punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for 16 months, or two or three years."

What Are the Related Crimes?

  • Penal Code 288.3 PCcontact a minor to commit a felony. This offense is described as contacting a minor or attempting to, with the intent to commit a sex crime or other serious felony offense involving the minor.
  • Penal Code 288.4 PC – arrange a meeting with a minor. This statute makes it a crime to arrange a meeting with a minor under 18 with the intent to engage in sexual activity. An actual meeting does not need to occur.
  • Penal Code 311 PCchild pornography. This law makes it a crime for someone to send, transport, duplicate, print, advertise, or possess child pornography. It's also illegal to hire or persuade minors to participate in making pornographic material. 
  • Penal Code 647.6 PCchild molestation. This offense occurs when somebody annoys or molests a child under 18 or an adult whom you believe to be under 18. Again, sexual consent is not a valid defense.
  • Penal Code 288 PClewd acts on a minor. This offense occurs when someone commits an indecent act on a child under 14, including touching the minor for sexual gratification or causing the minor to themselves or another person. This law is often called “lewd and lascivious acts with a minor child.”
  • Penal Code 646.9 – cyberstalking. This law makes it a crime to follow, harass, and threaten someone to the point that they fear for their safety.  

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.

California Penal Code 288.2 PC – Sending Harmful Material to Seduce a Minor
PC 288.2 makes it a crime to send, distribute or exhibit harmful or obscene material to a minor.

These cases involve people on the internet either downloading child pornography, talking in chat rooms with underage individuals, or trading child porn on kick apps or other applications on the internet. They've got special units in the district attorney's office at the CCB courthouse, and all they do is handle these cases. 

The first thing the prosecutors have to prove is that you are the one who is involved with an internet sex crime.  You're talking to the undercover police officer or trading child pornography.  You're the one who is using the application related to sex-related offenses – whatever the case may be.

So, that's one thing we must consider: do they have the evidence to prosecute you for this type of crime? Our California sex crime lawyers could use different strategies to challenge allegations of Penal Code 288.2 sending harmful material to seduce a minor, including the following:

  • You did not send “harmful” material,
  • You did not act with criminal intent,
  • You were falsely accused.

Perhaps we can argue the material wasn't harmful as defined under this statute. Maybe we can say there was a lack of criminal intent. Recall from above that the prosecutor must prove that you had the intent to arouse yourself or the minor sexually and had the intent of seducing the minor to have sex with you.

Perhaps we can argue that you were falsely accused. It's not uncommon for minors or their parents to unjustly accuse an adult out of anger or revenge.

If necessary, we can get a forensic expert to look at the evidence the prosecutors claim they have, and then we'll discuss the best solution moving forward. 

Perhaps the best strategy is to negotiate the case with the prosecutor. We need to sit down and talk about it and decide what type of mitigation package we might be able to put together to convince the prosecutors to give you a lesser crime to try to avoid sex registration and jail time.  So, pick up the phone now.  Ask for a meeting with Ron Hedding.  I stand ready to help you. The Hedding Law Firm is located in Los Angeles, CA.

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