Penal Code 288(b)(2) PC - Lewd Acts by a Caretaker of a Dependent Person
California Penal Code 288(b)(2) makes it a felony crime for a caretaker to commit a lewd act on a dependent person using force or fear of bodily injury.
A “caretaker” is an owner, operator, administrator, employee, independent contractor, agent, or volunteer of a public or private facility providing care for dependent people or anyone over 65.
PC 288(b)(2) says, “A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for five, eight, or ten years.”
A “dependent person” is someone who has physical or mental impairments that substantially restrict their ability to carry out everyday activities or to protect their rights.
Nursing homes, assisted living facilities, and home care are common facilities that care for dependent people. Typically, a caretaker is an employee of a facility that provides daily care for a dependent adult.
Violations of Penal Code 288(b)(2) carry severe penalties. A caretaker charged with lewd acts will face a felony charge and imprisonment of up to 10 years.
What is a Lewd Act?
A “lewd act” is the willful touching of a dependent person for sexual purposes or intentionally causing them to touch themselves or another person for a sexual purpose. Simply put, a lewd act is illegal conduct for sexual gratification.
PC 288(a) says, “anyone who willfully and lewdly commits any lewd or lascivious act upon the body with the intent to arouse, appeal, or gratify the lust, passions, or sexual desires of that person.”
PC 288(a) is related to lewd acts against children, while PC 288(b)(2) prohibits the same type of conduct against dependent people who are often elderly in assisted living facilities.
Notably, a lewd act not only refers to committing an inappropriate sexual act on someone but also forcing them to commit sexual acts on themselves. Whether a defendant uses “force or fear of bodily injury” will be decided on the details and circumstances of the case.
What Must Be Proven to Convict You?
For a prosecutor to convict you of violating Penal Code 288(b)(2), lewd acts by a caretaker upon a dependent adult, they must prove all the “elements of the crime” beyond a reasonable doubt, such as the following:
- You were a caretaker of a dependent person.
- You willfully committed a lewd act on them.
- You had the intent to arouse or sexually gratify yourself.
- You used force, violence, duress, or fear of bodily injury.
Notably, a “lewd or lascivious” act includes touching a dependent person for sexual arousal on any part of their body, either on their bare skin or through clothing.
How are Caretakers & Dependents Defined?
As mentioned above, to convict you of violating Penal Code 288(b)(2), prosecutors must prove you committed a lewd act, used force or intimidation, and were a caretaker of a dependent person.
Caretakers are defined as “owners, operators, administrators, employees, independent contractors, agents, or volunteers” at public or private facilities that care for the elderly or dependent persons. Some of the most common places that use caretakers include the following:
- Assisted living facilities,
- Senior living facilities,
- Healthcare facilities,
- Clinics,
- Adult day care centers,
- Respire care facilities,
- Community care facilities,
- Centers for developmentally disabled people.
A “dependent person” is defined as someone who has a physical or mental impairment that restricts their ability to carry out normal activities or protect their rights. To be “dependent” refers to those people who have diminished abilities due to age, such as those living in senior care facilities.
What are the Penalties for PC 288(b)(2)?
Suppose you are convicted of PC 288(b)(2) lewd acts by a caretaker. In that case, you are facing the following felony penalties:
- Five, eight, or ten years in state prison.
- A fine of up to $10,000.
- Registration as a tier-three sex offender for life.
Senate Bill 384 established a three-tier system that includes sex offender registration for ten years, twenty years, or life.
What are Related Crimes?
California has a few laws that are related to lewd acts by a caretaker, as discussed below.
Lewd acts with a minor - PC 288
Penal Code, 288 PC lewd acts on a minor, means to willfully commit a lewd or lascivious act on a minor under 14 with the intent of arousing the sexual desires of yourself or the child. A conviction carries three, six, or eight years in prison and the requirement to register as a sex offender as defined under Penal Code 290 PC.
Lewd acts with a minor by force or fear - PC 288(b)(1)
If force or fear were used, you could be charged under the more severe Penal Code 288(b)(1) PC. You can violate this law when you commit a lewd act against a minor using force or violence. If convicted, this felony crime carries up to five, eight, or ten years in state prison, and you also register as a sex offender for life.
Lewd act with a minor with bodily harm inflicted – PC 288(i)
Penal Code 288i PC makes it a crime to commit a lewd act with a minor, and bodily harm was inflicted in the commission of the indecent act. This felony crime carries a state prison sentence of up to life with the possibility of parole, and you must register as a California sex offender for life.
What are the Defenses for PC 288(b)(2)?
If you have been accused of lewd acts by a caretaker, our California sex crime lawyers can use different strategies to challenge the charges, such as the following:
- You are not a caretaker.
- The alleged victim is not a dependent person.
- The allegations are false.
Perhaps we can argue that you were not a caretaker as defined by law. Recall that it must be shown you had the role of caretaker when the lewd act occurred to be convicted.
Likewise, you can only be guilty under this law if the lewd act was committed on a dependent person. Perhaps we can show the alleged victim was not a dependent.
Perhaps we can argue that someone falsely accused you out of anger or jealousy. If you are facing a Penal Code 288(b)(2) charge for lewd acts by a caretaker on a dependent person, contact us for a free case evaluation. The Hedding Law Firm is based in Los Angeles, CA.
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