What is Considered a Lewd Act upon a Child For Purposes of Penal Code Section 288? I've handled many of these cases over my 26-year career. Typically, the issues are twofold: (1) the defendant is touching the child in a private part, and (2) that touching is done with the intent to either arouse themselves or arouse the child.
That's pretty much the actual lewd act necessary for purposes of that Penal Code Section 288 in California. See CALCRIM 1110 criminal jury instructions for lewd or lascivious act: child under 14 years.
Now, of course, things can get a lot more complicated than that. Sometimes, people will try to defend themselves by asserting that the touching was accidental. They didn't do it on purpose, or they didn't touch the person at all.
Touching Was Accidental Defense
So, first, the most common one that I see is the person saying that the touching was accidental. Maybe they were picking the child up. It also depends on how successful the arguments will be based on the relationship between the child and the alleged perpetrator.
If it's a parent, for example, a parent will be much more likely to touch a child in a way that could be misconstrued, for example, as some sex-related offense. So, that's really what we're talking about here: whether or not the perpetrator has touched the child intentionally with the intent to arouse them sexually.
Your best bet is to be completely honest with your attorney. I always encourage people to tell me the truth about what happened and what their intent was. This honesty allows us to evaluate the case effectively and determine the best strategy for resolution, whether it's a fight or a negotiation.
But realize when it comes to these sexual assault cases, many relatives are accused of doing bad things to their niece, nephew, or other family members, and the prosecutors see this a lot.
So, if they see an uncle, for example, touching a niece or a stepfather touching a stepdaughter, they see this all the time. So, this isn't some shocking thing to them. If you're going to say that it's an accident, be prepared for the prosecutors to say, no, it's not an accident.
We've seen this before, and this has all the makings of somebody trying to take advantage of that familial relationship and do something wrong to the child.
Negotiation with the Prosecutor for the Best Outcome
The key is to decide on the game plan from the beginning. We don't want to be wishy-washy about whether or not we're going to fight the case or work out a deal because, in my opinion, that leads to mistakes, and I'll give you a perfect example.
We're taking actions that look to the prosecutor and the judge like we want to fight the case, but we have no intention of fighting the case because we're going to lose it. All that will do is anger the prosecutor and judge.
It will put them in a defensive position and ultimately hurt the defendant in the case, so we don't want to take power-position moves or attack their case unless that's part of their overall strategy or unless either one of two things is going on.
Fight the Case in a Jury Trial
One, we have no intention of ever resolving the case—we're going to fight it to a jury trial. That makes it really easy. Two, we want to try to damage a weak point even though we might ultimately take a deal.
Then, that might be the right strategy for attacking the prosecution's evidence professionally—to attack their witness's credibility and do everything that we possibly can to get that result for the client.
It's crucial to make decisions early in these cases. This is something I always discuss with my clients right from the start after we've reviewed all the evidence and had a conversation with the prosecutor. Early decision-making puts us in control and allows us to plan the best strategy for your case.
We sit down and have an honest conversation about the best procedure moving forward as it relates to a sexual assault-type situation. When it comes to a lewd act upon a child, we have to make sure whether we're going to fight that charge or not or try to mitigate the case.
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