Lewd and lascivious conduct is a sexual act that is offensive to community standards of decency and often involves a minor under 18. Physical penetration is not necessary, such as groping a minor.
Lewd and lascivious conduct is a type of felony sex offense, and the penalties depend on the age of the victim and can increase if force is used. A conviction requires registering as a sex offender.
The term lewd or lascivious means an offensive sexual desire and is synonymous with words like obscene, vulgar, indecent, and pornographic. It is conduct that advances offensive sexual desire. As noted, conduct that is lewd or lascivious battery often involves children. It's considered highly offensive because children are too young to consent or understand sexual activity, which can result in psychological trauma for the victim.
Typically, lewd and lascivious acts include groping, indecent exposure of genitalia, sexually touching another person, getting somebody to touch the defendant sexually, or convincing or forcing others to touch each other sexually.
To be lewd and lascivious molestation, the sexual contact must be intentional or willful, not accidental. The conduct also must be for the purpose of arousing sexual desire, but whether that actually occurs does not matter.
Penetration is not required for conduct to be sexual. Physical penetration often becomes a more severe types of crime, such as rape, sexual assault, or
sexual battery. Sexual acts with children that involve penetration are considered more severe. In California, they are often charged with the following:
- Statutory rape - California Penal Code 261.5 PC.
- Aggravated sexual assault - California Penal Code 269 PC.
- Oral copulation with a minor - California Penal Code 287 PC.
Defendants convicted of lewd conduct generally have to register as sex offenders. In California, it's required under Megan's Law. First-time offenders will be required to register for 20 years, but subsequent offenses will require lifetime registration.
Lewd Acts With a Minor (PC 288)
Facing charges under California Penal Code 288(a), lewd acts with a child under 14, is a serious matter. This law is designed to protect minors from sexual abuse by expanding the definition of what constitutes abuse and even how sentencing is imposed if you are convicted.
PC 288 (a) says, "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."
Simply put, this statute prohibits committing lewd or lascivious acts with a minor under the age of 14, but the "lewd acts" must occur to arouse or appeal to the desires of the defendant or the child if they're to be illegal under this law. As noted above, actually arousing, appealing to, or gratifying your lust, passions, or the sexual desires of yourself or the child is not required to be charged and convicted.
What is a Lewd Act?
As noted, PC 288(a) prohibits lewd or lascivious acts involving a child under 14 years old with the intent to arouse or gratify sexual desires either of the perpetrator or the victim. While the acts do not require physical harm or violence, even minimal touching intended for sexual gratification is unlawful, such as the following conduct:
- Inappropriate sexual touching of a minor child under 18.
- Coercing a child to touch you or another child for sexual purposes or
- Asking a minor to expose themselves as a sexually motivated act.
Lewd Acts Conviction
To convict you under PC 288(a), the district attorney must prove the following beyond a reasonable doubt:
- You willfully intended to do what was necessary to violate the law.
- You touched any part of a minor's body, such as bare skin, or through the clothing, or
- You caused a child to touch their own body, your body, or the body of another person, and
- You intended on arousing, appealing to, or gratifying the lust, passions, or sexual desires of yourself or the child, and
- The child was under the age of 14 at the time of the act.
Lewd Acts with a Minor Quick Facts
- Inappropriate touching doesn't have to be skin-to-skin.
- Touching doesn't always have to involve sexual organs.
- Over-the-clothes touching violates the law if done with sexual intent.
- Encouraging a minor to touch themselves for the perpetrator's gratification also violated the law.
- An example includes encouraging a minor to masturbate during a video chat.
- There is no minimum time standard for inappropriate touching of a child.
- Grazing a child momentarily in an inappropriate manner can result in criminal charges under this law.
- Under California law, anyone under the age of 18 is not legally capable of consent.
- Each instance of lewd or lascivious conduct can result in a separate charge. For example, if a child reports multiple occurrences of inappropriate touching over several months, each act may be charged individually, even if the same victim is involved.
Other Important PC 288 Factors
- Attempted Lewd and Lascivious Acts Can Be Filed. Prosecutors might also file criminal charges for attempting to commit a lewd act with a minor. Under Penal Code 664 PC, anyone attempting to commit the act without success may be sentenced to the same penalty as if they had succeeded.
- Sentencing. PC 288(a) is a felony punishable by three, six, or eight years in state prison. However, there are additional issues to consider even with sentencing, as well as repercussions that often linger for many years afterward.
- No Suspended or Split Sentences. Defendants convicted of lewd acts with a minor are not eligible for suspended or split sentencing. This means you are ineligible to serve part of your sentence under supervised probation or house arrest. Incarceration is mandatory for the entire sentence.
- Concurrent Sentencing for Multiple Convictions. California law often mandates concurrent sentences for PC 288(a) convictions involving the same victim during a single course of conduct. This means that instead of serving time consecutively for separate charges, you will likely serve your sentences at the same time. Notably, this rule has exceptions.
- 3-Strikes Law. Lewd acts with a child under 14 are violent felonies under California's Three Strikes Law. A conviction will add a strike to your criminal record, and if you have two prior strikes, a new PC 288(a) conviction might result in a mandatory sentence of 25 years to life.
- Sex Offender Registration. Under California law, lewd acts with a minor qualify as Tier 2 sex offenses, meaning you'll be required to register as a sex offender and keep that registration current for at least 20 years.
- Deportation for Immigrants. Convictions under PC 288(a) are aggravated felonies and crimes of moral turpitude under federal immigration law. Non-citizen defendants and lawful permanent residents may face deportation and permanent inadmissibility to reenter the United States.
Related Offenses
These crimes are frequently charged along with Penal Code 288(a) and have common elements of the crime that the prosecutor must prove beyond a reasonable doubt. The related crimes include the following:
- PC 288.2 Sending Harmful Material To Seduce A Minor..
- PC 288.3 Contact a Minor With Intent To Commit Certain Felonies.
- PC 288.4 Arranging a Meeting With a Minor For Lewd Purposes..
- PC 288.7 Sexual Intercourse or Sodomy With a Child Under 10.
- PC 288.5 Continuous Sexual Abuse..
- PC 647.6 Annoying or Molesting a Child.
- PC 311.1 Distributing Obscene Matter to a Minor.
- PC 287 Oral Copulation on a Minor.
What are Common Defenses?
Depending on the circumstances of your case, an experienced California sex crime lawyer can use strategies. For example, we could argue that there was a lack of intent.
Since intent is a key element of PC 288(a), proving there was no sexual motivation behind the alleged actions can be a strong defense.
Perhaps we can argue that the allegations are false. Young children may misinterpret actions, or allegations may arise from manipulation during custody disputes or from coercion by another adult.
Perhaps we can argue there is insufficient evidence: Cases under PC 288(a) typically rely on a child's testimony. While such testimony carries significant weight, it must still be supported by corroborating evidence. We will closely examine the prosecution's evidence, looking for gaps, inconsistencies, or lack of corroborative proof.
For more information, contact the Hedding Law Firm, a criminal defense law firm located in based in Los Angeles, CA.
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