Lewd Acts by A Caretaker Law - Penal Code 288(b)(2) PC
California Penal Code 288(b)(2) makes it a crime for caretakers to commit lewd acts on dependent adults or someone physically impaired over 65 years old.
To be considered a dependent person, they must have a physical or mental impairment that prohibits performing normal routine activities.
Penal Code PC 288(b)(2) PC is defined in California as follows:
- “anyone who is a caretaker committing a lewd act upon a dependent person by using force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or someone else.”
A caretaker is usually an employee or owner of a facility providing daily care for dependent and unable to take care of themselves.
They often work in a nursing home, assisted living center, or provide elderly care at a dependent's own home.
A violation and a felony conviction for PC 288(b)2 carries severe penalties, such as a sentence for up to 10 years in state prison.
Our California sex crime defense lawyers are reviewing the laws more closely below.
What Is Considered a Lewd Act?
While defining a “lewd act” under PC 288(b)(2) might seem straightforward, the actual definition is a bit more complex.
A lewd act refers to unlawful conduct that is done for sexual gratification. Penal Code 288(a) PC states that any person who:
- “willfully and lewdly commits a lewd or lascivious act on the body, with the intent of arousal, appealing to, or gratifying lust, passions, or sexual desires of that person or the child, is guilty of a felony lewd act.”
Readers should note that while Penal Code 288(a) defines lewd acts against children, it also prohibits the same unlawful behavior against dependents.
Further, you can also be charged with a lewd act for forcing someone else to commit sexual acts on themselves.
What Must Be Proven for a Conviction?
Prosecutors will need to prove several different factors to convict someone of violating Penal Code 288(b)(2) lewd acts by a caretaker upon a dependent adult.
These factors are called the “elements of the crime” and listed under CALCRIM 1060 California Criminal Jury Instructions:
- defendant was a caretaker of a dependent person, and
- defendant willfully committed a lewd or lascivious act,
- with the specific intent to arouse or gratify a sexual desire, and
- Defendants used force, violence, coercion, or fear of a bodily injury.
A lewd or lascivious act refers to touching a dependent for sexual arousal on any part of their body. This includes bare skin or through their clothing.
How Does California Define a Caretaker & Dependent?
As stated, to be convicted, the prosecution has to prove that you committed a lewd act, used force or intimidation, and specifically that you were a caretaker of the dependent person victim.
Experienced criminal defense lawyers often challenge PC 288(b)(2) charges because of the statutory language around caretakers and dependents.
Penal Code 288.1 PC establishes that “caretakers” refer to “an owner, operator, employee, independent contractor, agent, or volunteer” at a public or private facility that provides daily care for the elderly or dependent persons.
Thus, some examples of places in California that use caretakers include:
- nursing home,
- health clinic,
- adult daycare center,
- foster home,
- community care facility, and
- centers for developmentally disabled people,
Penal Code 288.3 PC describes a dependent person as anybody with a physical or mental impairment restricting their ability to carry out routine activities or protect their rights, such as the physically disabled.
Dependent also means anyone with diminished abilities due to age, such as many living in senior care facilities.
What are the Penalties for a Conviction?
A PC 288(b)(2) conviction can have severe life-long consequences. This felony crime carries a punishment of:
- five, eight, or ten years in a California state prison;
- registration as a PC 290 sex offender.
Recently, the state of California added tiers to its sex offender registry. Senate Bill 384 established a three-tier system. Anyone convicted must now register as a sex offender for ten years, twenty years, or life.
Even a tier-one offense can have long-term ramifications, such as restrictions on residency, employment, and even child custody.
How to Defend PC 288(b)(2) Lewd Acts by a Caretaker
This is a grave crime because the caretaker is typically in a position of trust.
Meaning, the hospital, the family that has the caretaker working, whatever the case may be, has put that caretaker in there to try to help whoever it is they're taking care of.
Suppose they take advantage of that position of trust. In that case, prosecutors, judges, and the police will not look kindly upon that and want to dole out severe punishment for anyone involved in improper behavior related to someone they are taking care of.
So, suppose you or a loved one is being investigated for this crime or is in a position where they're being charged with the crime, facing prison, facing possibly registering as a sex offender, and losing a whole bunch of rights. What you're going to want to do is get an attorney on your side, working for you, fighting for you -- making the moves necessary so that you put yourself in the best possible position.
This Penal Code Section 288(b)(2) is very serious, and it's one of those scenarios where you don't want to put yourself in a position where you are left unprotected. You don't have a champion by your side; you don't have somebody who has experience. That's what it's all about.
So, pick up the phone now. Make the call. Ask for a meeting with Ron Hedding. Sometimes you've got a defense. Sometimes, the person you're taking care of is not telling the truth about what happened for one reason or another.
Sometimes they don't have it right. Sometimes a relative or family member is making accusations that simply aren't true, so you might be able to assert a defense.
Initial Defense Strategy Meeting
But the first key thing that we do is, get you in the office. We have you sit down, and we go over everything. Now we've got everything laid out on the table.
It's crucial that you're honest and you give all the information. Once I have that information, I'm in a position to advise you. Now I can tell you what to do.
See if we need an investigator. See if we need to talk to any witnesses, get any statements that might help you.
I'm going to do everything I can think of to make the right moves for you because no one else is going to be working for you.
The police, the prosecutors, when it comes to these types of serious offenses, they're looking to convict you and punish you.
They're not looking at the other side of the story, and that's probably one of the most important things when it comes to these types of cases -- it's for you to be able to give your side of the story.
If you can't give your side of the story, they're just going to paint a one-sided story that is simply not true, inaccurate, and factual.
So, you've come to the right place. I stand for ready to fight for you to help you protect your reputation, your freedom, and all the essential things to you.
Hedding Law Firm is based in Los Angeles County, and we offer a free case consultation.