What is Considered a Lewd Acts 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 is, whether or not the perpetrator has touched the child intentionally with the intent to arouse them sexually.
Your best bet is, to be honest with your attorney. I always encourage people to tell me the truth about what happened, what their intent was and give me an idea of what they think the other side is going to say so we can evaluate whether this is a case which we should fight or if this is a case that we need to resolve.
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 Prosecutor for Best Outcome
The key is from the beginning; we decide what the game plan is. We don't want to be wishy-washy with whether or not we're going to fight the case or work out a deal because, in my opinion, that leads to mistakes being made, 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 the case. All that is going to do is anger the prosecutor and judge.
It's going to put them in a defensive position, and ultimately it's going to hurt the defendant in the case, so we don't want to take power-position moves, and we don't want to attack their case unless that's part of their overall strategy 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 the case to a jury trial. That makes it real easy; or two, we want to try to do damage to a weak point even though we might ultimately take a deal.
Then that might be the right strategy to attack 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.
So, that decision, in my opinion, should be made early. That's something that I always get into with my clients right from the beginning after we've reviewed all of the evidence. After I talk to the prosecutor.
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.
Hedding Law Firm is a top-rated criminal defense law firm located in Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. Contact our firm for a free case evaluation at (213) 542-0979.