California “Lewd Acts with a Minor” Law – Penal Code 288(a) PC

In California, committing lewd and lascivious acts upon a minor is charged under penal code 288(a) pc.[1] Not only does a conviction carry incarceration, but it will also require you to register as a sex offender. Also known as “child molestation,” the statute contains three parts, each of which, make it a crime to commit a lewd act upon: (1) a minor under the age of 14; (2) a minor 14 or 15 years old; or (3) a dependent person where you are the minor’s caretaker.

Despite the minor giving consent, the law does not recognize this as a viable defense since minors are not capable of consenting to a sexual act. Additionally, the crime may occur by touching bare skin or through the outer clothing of the minor and it may even suffice if you instigated the minor to touch themselves or another.

The initial investigation begins with the minor or their parent filing a police report. Thereafter, sex crime investigators may wish to question you, seek to question additional witnesses, seize your phone and/or electronic devises, or arrange for your accuser to call you on a recorded line in hopes you make an admission.

Jail-Photo

What is the Government Required to Prove?

In order to prove you’re guilty of lewd and lascivious acts with a minor under PC 288(a), the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. You willfully touched any part of the minor’s body by bare skin or through clothing, OR, you willfully caused a children to touch your body, or someone else, by bare skin or through clothing;
  2. The act with committed with the intent to arouse, appeal, gratify lust, or sexual desires of that person;
  3. The minor was under 14 years old.[2]

Legal Defenses to California Child Molestation

  • Specific Intent: Lewd conduct with a minor requires the element of specific intent to arouse, appeal to, or gratify lust, passions, or sexual desire of the perpetrator or your accuser.  Accordingly, if the act was committed on accident or a result of misfortune, then you did not harbor the requisite intent.  Additionally, the act could have been committed for something other than sexual purposes, such as massaging a strained muscle, or demonstrating a self-defense move.
  • False Accusations: It is not uncommon for a minor and even their parent(s) to manipulate and leverage the system against you.  Motivations for making false accusations may include personal revenge, financial, or former spouses attempt to gain full child custody in an ongoing family court battle.
  • False Memory: Generally, lewd acts are committed long before a minor or parent reports to law enforcement.  Due to the length of the delay, your accuser’s memory could have been affected by the passage of time.  Moreover, experts in this field undoubtedly agree that false instances have a tendency of making certain people believe sexual acts actually occurred.  Furthermore, in the event your accuser is still a minor, the type and manner of questions asked must be carefully reviewed by a child forensic psychiatrist to ensure the minor is answering opened ended questions versus being led to an answer. Overall, there are a number of factors that can influence, suggest, or take part in your accuser’s story, which is why consulting with a defense expert in this field is typical when mounting your defense.
  • Alibi: The law does not require the prosecution to prove an exact time of when the act(s) were committed. Instead, the prosecutor can rely on a general time frame. However, in some cases, your accuser can be very specific on a date or time when the purported act occurred – e.g., on the evening of Halloween. In that instance, you can perhaps establish an alibi through the use of an eye-witness; credit card transactions or purchase receipts; or cellular phone data, to help prove you were at another location or were not with your accuser as they allege.

Punishment & Sentencing for PC 288(a)

The punishment for penal code 288(a) can be very technical and largely contingent upon whether certain facts or circumstances were plead and/or proven. Generally, the punishment carries the guideline ranges set forth below.

  • Minor Under 14: If you accuser is under the age of 14, then a conviction must be punished in the state prison for 3, 6, or 8 years. Any infliction of bodily harm as a result of the act will result in a sentence to life without the possibility of parole.[3] Where the offense is committed with a minor for money or other consideration, it is punishable by an additional 1 year prison term.
  • Minor is 14 or 15: Where your accuser is age 14 or 15 and you are at least 10 years older, the offense is a wobbler punishable in the county jail up to 1 year, or in the state prison for 1, 2, or 3 years.[4] An additional 1 year prison term is added if the act was committed with the minor for money or other consideration.
  • Forceful Act: Where the act is accomplished by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on your accuser or of another, the punishment carries 5, 8, or 10 years in state prison.[5]

Contact Us to Schedule a Free Consultation

If you’ve been arrested, charged, or are under investigation for lewd and lascivious acts with a minor under PC 288(a), then it is critical that you consult with an experienced Orange County criminal defense attorney as soon as possible. Sex crimes are very delicate cases and prosecutors treat child crimes very seriously. To avoid the mistake of providing information, statements, or any other hurtful evidence to the police, contact the Law Offices of John D. Rogers. We provide free confidential consultations concerning your rights and defenses.

Related Offenses

 

LEGAL REFERENCES:

[1] (a) Except as provided in subdivision (i), 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] See CALCRIM No. 1110: https://www.justia.com/criminal/docs/calcrim/1000/1110/

[3] “Bodily harm” is defined under Penal Code 288(i)(3) as, “substantial physical injury resulting from the use of more force than is necessary to commit the offense.”

[4] Penal Code (c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.

[5] Penal Code 288(b)(1) Any 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.