Defenses to PC 288(a) – California Lewd Acts with a Minor

January 8, 2022

Overview of PC 288(a) Charges

In California, lewd acts with a minor (also known as child molestation) is charged under penal code 288(a) pc.[1] It is punishable in the state prison for 3, 6, or 8 years.

If the act was carried out with force, fear, or the like, then the sentencing range elevates to 5, 8, or 10 years.[2] If the act causes bodily harm, then it is punishable by life in prison.[3]

To be convicted of lewd and lascivious acts with a minor, the prosecutor must prove:

  1. You willfully touched or caused the minor to touch yourself, themselves, or another;

  2. The act was committed with the intent to arouse, appeal, gratify the lust, or sexual desires of themselves or the minor;

  3. The minor was under 14 years old.

Defenses to Child Molestation Charges in California

Intent

Child molestation requires the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desire of the perpetrator or minor. Therefore, if the act was committed by accident or is the product of misfortune, then you did not harbor the requisite intent. For instance, the act may have been committed while massaging your accuser’s strained muscle or demonstrating a dance move.

False Accusations

It is not uncommon for a minor or a spouse to manipulate and leverage the criminal justice system against you. For instance, sexual allegations may stem from personal revenge, financial motivation, or a former spouse attempting to use the pending case to gain full child custody in family court. It is vital to expose these motivations, and the coincidental timing of the allegations, to support your innocence. 

False Memory

False memory is a growing problem leading to wrongful convictions. A victim’s recollection may be affected by the passage of time. Indeed, experts in the field of memory theorize that minors and adults are very capable of believing in the validity of a false account. Furthermore, there are a number of influences that may be implanted in your accuser’s recollection of a false event.

Credibility

Your accuser may have fatal credibility issues that question their story. For instance, they may have a character trait of habitually lying, or their version of the molestation is physically impossible or substantially improbable.

Alibi

In the event your accuser is very specific as to the date/time, then that opens the door for you to establish an alibi. For example, if your accuser were to claim the sexual act took place at 8 PM on Halloween, then you may introduce your cellular phone location data proving you were across town at the time.

Constitutional Violation

Law enforcement may have committed a constitutional violation that will result in the prosecutor’s inability to continue with their case. For example, the police may have searched your home or vehicle without probable cause. Furthermore, you have been subjected to custodial interrogation without the police advising you of your Miranda rights.

Should I Retain a Lawyer If I’m Under Investigation for Child Molestation?

Child molestation investigations ordinarily begin when a child reveals an act to a school counselor, teacher, therapist, or reports it to the police. Early intervention of an experienced Newport Beach sex crimes lawyer can help increase the chances of getting the case rejected from prosecution. Sexual assault allegations must be handled immediately, much like having symptoms of a life-threatening illness. Never assume that because you didn’t commit a crime, the justice system will recognize that. Don’t leave your future and freedom up to chance. Take the proactive approach and move to deflect the accusations before they get out of control.  

Hire a Newport Beach Sex Crimes Attorney

If you are under investigation for committing lewd acts with a minor under PC 288(a), then contact the Law Offices of John D. Rogers today. We offer free confidential consultations about your rights and options.

Attorney John D. Rogers is a board-certified criminal law specialist by the California state bar. His certification assures competency and experience within an area of law and professionalism and ethics in practice. Only a small amount of practicing criminal defense lawyers in California hold this distinction. Give us a call at (949) 625-4487 to speak with an experienced Newport Beach criminal defense attorney.

Related Sex Crime Charges


[1] Pen. Code, § 288(a) – (“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.”)

[2] Pen. Code, § 288(b)(1) – (“A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.”)

[3] Pen. Code, § 288(i)(1) – (“A person convicted of a violation of subdivision (a) shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim.”)

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