Elements of the Crime – California Penal Code Section 288(b)(1)
When it comes to these crimes against children — sex-related offenses in Los Angeles county — prosecutors have certain elements of the crime that they have to prove in order to convict somebody of one of these cases.
Obviously, you want to know what the elements are, especially if you believe that you have a defense in the case because if they can't prove one or all of the elements of lewd or lascivious acts upon a child by force or fear, then the case will be dismissed.
The judge will instruct the jury when it comes right down to it is that the defendant is charged, and then they'll put the Count and this Penal Code 288(b)(1) with a lewd or lascivious act by force or fear on a child under the age of 14 years old.
So, to prove this, it says that, number one the defendant willfully touched any part of a child's body either on the bare skin or through the clothes. So, that seems to require some touching on the skin.
But then they put an “or” in there, and that is that the defendant willfully caused a child to touch his or her own body part, the defendant's body or the body of someone else, either on the bare skin or through the clothing. See related: Child Molestation.
Willfully Touching a Child
So, this really says the first element can be either the child touching the person or someone causing the child to touch the person, or somebody touching the child. So, that element can be proved by either one of those theories of liability.
Obviously, the prosecutors will know what their theory is before the case starts and the defense will know what their theory is before the case starts. So, that's element number one.
Use of Force or Fear
Element number two says in committing the act, the defendant used force, violence, duress, menace or fear of immediate and unlawful bodily injury to the child or someone else. This has to do with some type of force being used. In other words, doing it against the child's will.
So, a potential defense of this particular charge would be consent. Someone agreed to do it. Obviously, that's not force. There's no menace. That's what makes this charge so serious is that you're dealing with a child under the age of 14 and you're using some sort of force against that child. So, that's why this crime carries a lot of penalty if the prosecutors can convict the person of it.
Intent to Arouse Sexual Desires
Element number three says the defendant committed the act with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of himself or the child. So, that means when the person did whatever the sexual touching was, they were trying to arouse the child or they were trying to arouse themselves.
So, you have to look at the facts and circumstances surrounding the particular touching in order to evaluate that. An accidental touching is not, obviously, going to fit under this Penal Code Section 288(b)(1) and you're not going to be able to charge somebody with a lewd or lascivious act with an accidental touching.
It's going to have to be something that intentional — it's clearly intentional from the surrounding facts, and obviously, the prosecutors are going to need evidence and witnesses to back this up.
Child Under 14 Years Old
The last element is, the child was under the age of 14 years old at the time of the act. Sometimes what I see coming up is that the child cannot remember when the conduct occurred that is the subject matter of the criminal charges of a lewd and lascivious act allegations by force or fear.
So, that could be a potential defense to this particular Penal Code Section because you need to know how old the child was at the time. Um, and then the jury instructions, CALCRIM 1111. gives some instructions to the judge and says, someone commits an act willfully when he or she does it willingly or on purpose.
It is not required that he or she intend to break the law, hurt someone else or gain any advantage.
That's kind of a nebulous little statement there but it really has to do with telling the jury that the person — if they acted by accident in touching the individual, then that could be a defense to the crime. But if they really intentionally did it, then they're going to be held responsible for it.
Jury Instructions for Lewd or Lascivious Act By Force
Then the instruction goes on to say, actually arousing, appealing, gratifying the lust, passions or sexual desires of the perpetrator of the child is not required. So, in other words, someone who does some things that are clear based on a reasonable person standard that they're trying to gratify themselves or gratify the child, that's going to be enough — whether the child was gratified or whether they were gratified — doesn't matter.
If they did something and it's clear what they were doing and they were intending to arouse themselves or the child, then that's going to be enough to meet this particular element.
The next thing talks about the force used must be substantially different from or substantially greater than the force needed to accomplish the act itself. This is where you see arguments and battles in jury trials, which is that the act of actually inflicting lewd and lascivious conduct on somebody does have some element of force to it.
So, if all you did was you did the act, but you really didn't use any extra force necessary to commit the act, then you wouldn't be able to be charged under this particular Penal Code Section. This is a very gray area. A nebulous way to put things, so there's arguments back and forth.
The defense is trying to argue, wait a minute, there's no extra force used here. The prosecutor is saying, yes there was and pointing it out. So, this is something that comes up all the time.
Consult with a Sex Crime Defense Lawyer
So, if you're charged with a lewd or lascivious act by force or fear pursuant to Penal Code Section 288(b)(1) in one of the Los Angeles county criminal courthouses, you need to know the elements.
You need to discuss the elements with your defense attorney and you need to decide whether this is something you really want to take to trial and fight, or whether it's something that you should plea bargain with the prosecutor so you don't end up with a much harsher sentence.