Lewd Acts with a Minor - Penal Code 288 PC
California Penal Code 288 PC defines the crime of lewd and lascivious acts with a child, often called child molestation. It's described as any touching of a child under the age of 14 when the act is for sexual purposes. If convicted, you face felony penalties of three, six, or eight years in state prison.
PC 288 says, "(a) Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
(b)(1) A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(2) 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 5, 8, or 10 years.
(c)(1) A person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.
(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year."
Notably, under California Penal Code 801.1 PC, a felony prosecution for a PC 288 lewd act against a minor can be brought at any time before the victim turns 40. This is known as the statute of limitations.
What is the Definition of Lewd Acts with a Child?
Penal Code 288(a) PC defines a “lewd act with a minor” as any lewd or lascivious act on the body of a child under 14 with the intent of arousing or gratifying the lust of the perpetrator, child, or someone else.
You could be charged with child molestation under PC 288 if you engaged in a lewd act with a child under 14 or engaged in a lewd act with a minor who is 14 or 15 and who is at least ten years younger than you.
You can commit a lewd or lascivious act when you willfully touch any part of a child's body or cause a child to feel your body, their body, or the body of someone else. You commit an act "willfully" when it is on purpose. You don't need to intend to break the law or harm someone. Notably, accidental contact with a sexual organ on a child is not considered a PC 288 lewd act.
Under Penal Code 288 PC, "touch" means any part of a child's body or causing a child to touch another person. Notably, the touching does have to be on their skin or a sexual organ. Instead, it can be on any body part and made on bare skin or through their clothing. The primary factor is whether the touching was on purpose and intended to cause arousal or to gratify a sexual desire. This means that actual sexual arousal is not required.
Suppose you use force or fear to commit a lewd act on a child. In that case, you would be exposed to enhanced penalties. Penal Code 288(b)(1) imposes more significant penalties if the lewd act was committed by the following:
Notably, the threats must place the child in fear of immediate bodily injury to the child or someone else. A lewd act is committed by fear if the child is reasonably afraid or the perpetrator believes they are and takes advantage of the situation. Duress is described as using a direct or implied threat of force, violence, or revenge sufficient to cause someone to submit to something they would not usually submit to.
Sexual intent is often difficult to prove by a prosecutor. Whether a perpetrator acted with the required criminal intent is typically based on all the circumstances, such as the context of how the touching occurred and whether they knew each other. Sometimes, intent can be proven when there is no reasonable, innocent explanation for why they are touching the intimate parts of a minor's body.
Some related crimes include California Penal Code 261.5 statutory rape. Penal Code 288.3 defines the crime of contacting a minor to commit a felony. Penal Code 220 PC defines the crime of assault with intent to commit a felony.
What Are the Penalties for a PC 288 Conviction?
The penalties for PC 288 PC will always vary based on the child's age, whether force or threats were used, and your criminal history. Let's review the potential punishments below.
Suppose the child was under 14 years old when the lewd act occurred, a felony violation of Penal Code 288(a) PC. When no force is used, the penalties include the following:
- Three, six, or eight years in state prison, and
- A fine of up to $10,000, or
- The judge could grant probation and up to one year in jail.
Suppose the child was under 14 years old when the lewd act occurred involving force or threats, a felony violation of Penal Code 288(b)(1) PC. In that case, the penalties include the following:
- Five, eight, or ten years in state prison and
- A fine of up to $10,000
Notably, If you are convicted of Penal Code 288(b)(1) lewd acts with a minor by force or fear, you are not eligible for probation and must sentenced to prison.
Suppose the child was under 14 years old when the lewd act occurred, resulting in bodily harm, a felony violation of Penal Code 288(i) PC. In that case, the penalties include the following:
- Life in prison with the possibility of parole,
- Five-year sentencing enhancement for a great bodily injury under Penal Code 12022.8 PC
Notably, "bodily harm" and a "great bodily injury" are described as a significant physical injury.
Suppose the child was 14 or 15 years old when the lewd act occurred, and you were at least ten years older, a violation of Penal Code 288(c)(1) PC. In that case, a wobbler can be charged with a misdemeanor or felony, depending on the case details and your criminal history. The penalties include the following:
- Misdemeanors are up to one year in county jail and are fined up to $1,000.
- Felonies are 16 months, two or three years in state prison, OR
- Felony probation that includes one year in county jail,
- Registration as a California sex offender under Penal Code 290 PC.
Suppose the child was 16 or 17 years old when the lewd act occurred. In that case, it would be prosecuted under different California laws, such as Penal Code 261.5 PC statutory rape. Penalties for misdemeanor statutory rape consist of probation, a year in jail, and $1,000 in fines. A felony conviction can result in probation, up to four years in state prison, and fines of up to $10,000.
Suppose you have a prior sex crime conviction when convicted of PC 288 lewd acts. In that case, you could face prosecution under Penal Code 667.71(b) habitual sexual offender, which carries a sentence of 25 years to life in state prison.
Will You Have to Register as a Sex Offender?
Suppose you are convicted of violating California Penal Code 288 PC lewd acts with a minor. In that case, you will be required to register in the “Megan's Law” sex offender registry in California. Notably, judges are not allowed any discretion on the requirement to register as a sex offender.
Thus, a common strategy by our sex crime defense lawyers is to negotiate with the prosecutor to reduce the charges to a crime that does not require registration as a sex offender, such as misdemeanor Penal Code 240 PC battery. Sex offenders are divided into three “tiers” based on the severity of the crime:
- Tier 3 lifetime registration for the most severe sex offenders for second or subsequent conviction under PC 288(a) or a PC 288(b)(i) conviction.
- Tier 2 registration for 20 years or more for a first-time PC 288(a) conviction.
What Are the Related Laws?
Several California sex crimes are related to Penal Code 288 PC lewd acts with a minor. Often, these laws are charged in addition to PC 288 or can be charged as a lesser included offense, such as the following:
- Penal Code 288.1 PC - mental evaluations for sex crimes,
- Penal Code 288.2 PC - send harmful material to seduce minors,
- Penal Code 288.3 PC – contact a minor to commit a felony,
- Penal Code 288.4 PC – arranging a meeting with a minor,
- Penal Code 288.5 PC - continuous sexual abuse of a child,
- Penal Code 288.7 PC - sex with a child under the age of 10,
- Penal Code 288(b)(1) PC - lewd acts with a minor by force or fear,
- Penal Code 288(c)(1) PC - lewd acts with a minor age 14 or 15,
- Penal Code 288(b)(2) PC - lewd acts by a caretaker,
- Penal Code 287 PC - oral copulation with a minor,
- Penal Code 207 PC - kidnapping,
- Penal Code 220 PC - assault with intent to commit a felony,
- Penal Code 243.4 PC - sexual battery,
- Penal Code 311 PC - child pornography,
- Penal Code 647.6 PC - annoying or molesting a child,
- Penal Code 269 PC - aggravated sexual assault on a child;
- Penal Code 289 PC - sexual penetration with a foreign object.
What Are the Defenses for PC 288?
There are a variety of strategies to defend against Penal Code 288 lewd acts with minor charges, often called "child molestation." Notably, you must understand that the minor's consent is not a valid defense as they cannot consent to sexual activity under California law. Our California sex crime lawyers must review all the case details to determine an appropriate strategy. Some of the most common defenses are discussed below.
Touching was accidental
To prove guilt in a PC 288 lewd acts case, the prosecutor must prove you willfully touched a minor for lewd purposes or that you caused the minor to feel themselves or someone else. Perhaps we can argue that the contact was accidental and that you are not guilty.
Perhaps we can argue that the minor is not telling the truth. Their credibility might become an issue when there is no physical evidence. We could obtain the minor's school records, review their social media, and interview friends, family, and witnesses to determine their tendency to be truthful. Perhaps the minor has a history of false accusations, or another adult coached them to lie.
No Intent to arouse
Under Penal Code 288 PC, unlawful contact with a minor must be made to arouse yourself or the child sexually. Perhaps we can argue that you had no intent to arouse or gratify yourself or the child sexually.
Alleged sex crimes against children in California are aggressively prosecuted. Sometimes, during a PC 288 investigation, overzealous police detectives obtain evidence in a manner that violates your constitutional rights. Perhaps we can get evidence excluded based on the following:
- coerced confession,
- illegal search and seizure,
- police misconduct,
- false testimony.
Private polygraph test
Sometimes, it might be possible to defend PC 288 lewd act charges by using a private polygraph examination, known as a "lie detector test.” While polygraph results are not admissible in court, they could prove beneficial because the results could be kept private unless you pass the test.
Suppose you are accused of lewd acts but adamantly deny the allegations. In that case, we could arrange a private polygraph test with an examiner who has established credibility. If the test reveals deception, we are not required to share the results because they are private. However, suppose the exam shows that you were truthful. In that case, we could present the results to the prosecutor, who might be persuaded to drop the charges.
What is a Mitigation Package?
Suppose there is sufficient evidence to convict you, or you made a confession to the police that you engaged in lewd acts with a minor. In that case, a different defense strategy must be used to avoid the most severe penalties. Perhaps we can argue it was a single isolated incident that would not likely ever happen again.
This approach is known as a "mitigation package," where we put together information that places you in a favorable light to the judge during sentencing. It focuses on your good character and mitigating factors and is often successful in receiving probation rather than state prison time. Sometimes, the probation terms involve up to one year in county jail but not prison.
However, before a judge considers granting probation, they typically want a Penal Code 288.1 report, a mental health evaluation by a psychologist or psychiatrist. The examiner will conduct a personal interview and will be reviewing the following:
- your history,
- case circumstances,
- whether you are a threat to children,
- whether the lewd act would occur again.
Suppose the examiner's report is favorable. We can use that case to argue for grating probation rather than jail time at the sentencing hearing. We'll also get a Static 99 report, a generalized test to assess whether or not you might be a recidivist and whether or not you might get involved with something like this again.
So, if you need help, you've come to the right place. Let me put my experience to work for you. Pick up the phone. Ask to speak to Ron Hedding. We'll have a confidential meeting, and I'll do everything to help.
Hedding Law Firm is a top-ranked criminal defense law firm in Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. Contact our office for a free case consultation at (213) 542-0979.
- Internet Police Sting Operations
- How California's Three-Tier System Applies to Sex Crimes
- California Megan's Law Website
- CALCRIM No. 1110. Lewd Acts on a Child
- California Penal Code 801.1 PC
- California Penal Code 288 PC
- California Penal Code 667 PC
- California Penal Code 290 PC
- California Senate Bill 421
- California Evidence Code 115
- People v. Gilbert 5 Cal. App. 4th 1372 (1992)