CA Penal Code 288

Lewd Acts with a Minor

To be convicted of Lewd Acts with a Minor Under 14, CA Penal Code 288, the prosecutor must prove:

  1. That you willfully touched any part of a child’s body or that you willfully caused a child to touch his/her own body, your body, or another’s person’s body
  2. That you did so with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of your or of the child

Willfully means deliberately.  It does not necessarily mean that you intended to break the law, harm someone, or gain advantage; it simply means that you did something on purpose.  This protects people from being convicted of lewd acts with a minor for accidentally touching a child.

Touch means any part of a child’s body, either bare skin or through clothing.

The law is vague on purpose.  By having CA Penal Code 288 written in ambiguous terms  it allows for more acts to be punishable under the law.  You are in violation of lewd acts with a minor if you touch a child, regardless or region, for your sexual arousal.  The child could be clothed from head to toe but that doesn’t matter because of the language of the law.

The law states that the touching must be performed with the intent of arousing.  The important thing to note here is that the prosecutor does not need to prove that you were aroused, only that you intended to be aroused.

If convicted of CA Penal Code 288 you will face:

If the victim was less than 14 at the time of the act:

  • Up to one year in county jail and probation, or,
  • 3, 6, or 8 years in state prison
  • A possible “strike” in accordance to California’s Three Strike Law

If the victim was less than 14 and violence, duress, force or threats were used you could face:

  • 5, 8, or 10 years in state prison

If you are a repeat offender then the sentence could be 25 years to life in state prison.

If the victim was 14 or 15 at the time of the lewd act then the crime is a misdemeanor, meaning it can be charged as wither a felony or a misdemeanor depending on the details of the crime and the defendant’ criminal record.

If the victim was 14 or 15 at the time of the lewd act and you are charged with a felony, you face:

  • Up to one year in county jail and probation, or,
  • Up to 16 months, 2 or 3 years in state prison

If the victim was 14 or 15 at the time of the lewd act and you are charged with a misdemeanor, you face:

  • Up to one year in county jail and probation

Regardless of the age of the victim at the time of the lewd act you will need to:

  • Register as a sex offender for life in accordance to CA Penal Code 290 [2] [1]
  • Responsible for any medical bills (either medical or psychological) that the child incurred because of the lewd act
  • An additional 5-year prison sentence if the minor sustained great bodily injury during the lewd act

The Police Investigation

A lewd act against a child is a terrible crime and should be punished, but only if the defendant is guilty of the act.  It’s unfortunate, yet common for children to fabricate stories to get someone in trouble that they don’t like; for instance, a step-parent, a parent’s new boyfriend or girlfriend, etc.   In order to make sure that the allegations are true, the police perform a thorough investigation before charging a defendant with CA Penal Code 288.

Firstly, the accuser will report the lewd act to an authoritative figure, be it a parent, school counselor, the police etc.  The incident will be noted and then the police will be notified.

Secondly, the police or a child psychologist will interview the accuser to understand what happened during the lewd act.  This is a very important step to the process because a poor interviewer can lead the accuser into saying things that didn’t necessarily happen.  These interviews are always recorded and are an essential piece of evidence for the prosecutor’s case.

Thirdly, a medical examination will be performed on the accuser to try and find any forensic evidence that can definitively prove that the accuser was inappropriately touched.  The police will search the accuser’s body and clothing in search of any saliva, hair, skin or semen of the suspects.

Next, the police will coach the accuser during a phone call with the suspect, in an attempt to coerce the suspect into confessing.

Then, the police will look at the suspect’s past and try to find additional victims; it is rare for a true pedophile to only have one victim.  If more victims are found then the prosecutor’s case becomes increasingly strong and additional CA Penal Code 288 charges are filed against the suspect.

After searching for more victims, the police will confront the suspect for the first time and interrogate the suspect about the alleged lewd act.  As a criminal defense law office, we urge you not to talk to the police if they come to interrogate you, the police are trained to extract minute inconsistencies with your story and these will be used against you in court.  If you have been contacted by the police in association to a CA Penal Code 288 and you’re innocent we urge you to find a criminal defense attorney promptly.

Finally, the police will have the suspect take a polygraph test.  If the suspect passes the test, meaning he truthfully answered questions about the lewd act then he/she will likely be allowed to go and charges will not be filed.  However, if the suspect fails the test then the police will file charges and the prosecutor will continue building his/her case.

Prosecuting Lewd Acts with a Minor Under14

In order for a prosecutor to prove that you’re guilty of CA Penal Code 288 he/she must prove that you fulfilled the two elements of the crime:

  1. That you willfully touched any part of a child’s body or that you willfully caused a child to touch his/her own body, your body, or another’s person’s body
  2. That you did so with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of your or of the child

 These cases can be relatively easy to prosecute because the public always wants these cases to be settled quickly and for someone to go to jail.  It’s unfortunate but the public is quick to jump to conclusions without knowing the necessary facts of the case.  This is unfortunate because if the wrong person is found guilty of CA Penal Code 288 then he/she will have to register as a sex offender for life and their reputation will be ruined.

Defending Lewd Acts with a Minor Under 14

As previously stated, lewd acts with a child are terrible crimes and should be punished, but only if the defendant is guilty.  A skilled criminal defense attorney will use several strategies in order to prove your innocence if you’ve been charged with CA Penal Code 288.

The first thing your criminal defense attorney will do is to address the accuser’s credibility.  This means that your attorney will subpoena school records, emails, social networking accounts, etc. and see if there is any evidence showing that the act was untrue, perhaps a status update or a conversation with a friend saying that the accuser hates someone and wants them gone.  A criminal defense attorney will also interview teachers, friends, schoolmates, etc. to see if the accuser is known for fabricating stories in an attempt to get people in trouble.

Your criminal defense attorney will then prove that the touching was accidental.  One of the elements of the crime is that you willfully touch a minor, or willfully cause the minor to touch you, him/herself, or another person.  Willfully means deliberately.  If you did not deliberately touch the accuser then you are not guilty of CA Penal Code 288.

The next approach your criminal defense attorney will take is to prove that the act was not intended to cause sexual arousal for you or for the victim.  In other words, if you had to touch a child due to a medical condition or some other valid reason, other than for sexual arousal, then you are not guilty of a lewd act with a child under 14.

Your criminal defense attorney will also have you take a private polygraph test.  The test will be administered by a former FBI member or someone with equal credentials and will only be made public if you pass the test.  If you don’t pass the test then the results will be shredded and never see the light of day.  However, if you do pass then the results can’t be used in court but they can be presented to the prosecutor in hopes of he/she dropping the case so they don’t convict an innocent person.

Your criminal defense attorney will also make sure that the prosecution’s evidence against you was lawfully acquired.  If the evidence was seized illegally then it will be thrown out and the prosecution’s case will be weakened.

If you have recently been arrested for CA Penal Code 288 then it’s imperative that you contact a skilled criminal defense attorney immediately.  We cannot stress enough that you do not talk to the police without your attorney.

Related Crimes

Sending Harmful Matter to Seduce a Minor, CA Penal Code 288.2 [3], refers to when you send erotic material to a child you believe to be younger than 14 for either your sexual arousal or theirs.  This is a wobbler, meaning it can be tried as either a misdemeanor, or a felony.  If convicted you face county jail or state prison time.

Contacting a Minor to Commit a Felony, CA Penal Code 288.3 [4], refers to when you contact a minor and plan to meet then in order to perform either kidnapping, rape, sodomy, lewd acts or making child pornography.  Contacting a Minor to Commit a Felony is a felony and you will face up to 3 years in state prison and be a registered sex offender for life.

Arranging a Meeting with a Child for Lewd Purposes, CA Penal Code 288.4 [5], refers to when you arrange to meet a minor to engage in lewd behavior.  CA Penal Code 288.4 is a wobbler, meaning it can be tried as either a felony or a misdemeanor, and if convicted you could face up to 4 years in state prison.

Continuous Sexual Abuse of a Child, CA Penal Code 288.5 [6], refers to when you repeatedly sexual abuse a child in 3 or more sexual acts over a span of 3 months or longer.  CA Penal Code 288.5 is a felony and you could face up 16 years in state prison.

Sex with a Child Under 10, CA Penal Code 288.7 [7], refers to when you have sexual intercourse with a child under 10 years old.  CA Penal Code 288.7 is a felony and you face 25 years to life if convicted.

Oral Copulation with a Minor, CA Penal Code 288a [8], refers to oral copulation with a minor under 14 years old, the punishment is the same as lewd acts with a child.  However, if the child is under 10 years old then you face up to 8 years in state prison.

Child Pornography, CA Penal Code 311 [9], refers to the sale and distribution of child pornography.  If convicted of CA Penal Code 311 you face jail time and fines.

 

References

[1] Any 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.

[2] (a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.

(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military

court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.

[3] Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the

intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.

[4] (a) Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.

(b) As used in this section, “contacts or communicates with” shallinclude direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system.

(c) A person convicted of a violation of subdivision (a) who has previously been convicted of a violation of subdivision (a) shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.

[5] 288.4. (a) (1) Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.

[6] (a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.

[7]288.7. (a) Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.

(b) Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.

[8] http://law.onecle.com/california/penal/288a.html

[9] http://law.onecle.com/california/penal/311.html

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