CA “Sending Harmful Matter to a Minor” Law – Penal Code 288.2 PC

In California, penal code 288.2 pc makes it unlawful to knowingly transmit obscene or indecent material to someone under the age of 18.[1] Obscene or indecent material can be transmitted in any of the following forms:

• book
• magazine
• newspaper
• video recording
• picture
• photograph
• motion picture
• pictorial representations
• statute or figure

The charge requires that you harbor the requisite intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of a minor as well as intend to engage in sexual intercourse.

How is Material Considered Harmful?

The overbreadth definition of “harmful material” has been upheld despite several constitutional First Amendment[2] challenges.[3] Indeed, the depiction of nudity or sexual activity, by itself, does not make the material harmful. Instead, the following three-prong test was developed to evaluate whether content is harmful:

1. It shows or describes sexual conduct in an obviously offensive way;
2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors;
3. An average adult person applying contemporary statewide standards would conclude it appeals to prurient interest.

Elements of Sending Harmful Matter to Seduce a Minor

PC 288.2(a) requires that the prosecutor prove the following elements beyond a reasonable doubt:

1. You sent, exhibited, or distributed harmful material or material depicting a minor or a minor engaging in sexual conduct;
2. You knew the character of the material;

3. You knew or should have known the other person was a minor;

4. You intended to engage in sexual intimacy with the other person.[4]

Legal Defenses to California PC 288.2(a)

Entrapment: These cases ordinarily arise from internet chats where the minor reports you to law enforcement, or, you are communicating directly with law enforcement posing as a minor. In cases where you had no thought of committing a crime and it was based upon law enforcement’s idea, it will open the door to a government entrapment defense. Some common examples of entrapment include when police badger, persuade you by flattery, repeated or insistent requests, or an appeal to friendship or sympathy.

Sexual Education: A parent or guardian of a minor is not guilty for this offense if they acted to promote legitimate sex education. Likewise, legitimate scientific or educational activities would also serve as a defense.[5]

Lack of Intent: The prosecution must prove that you harbored the requisite intent to sexually seduce the minor when you transmitted the material. If there was no discussion of arranging to meet, then proving you actually intended to become intimate with the minor becomes more challenging.

Sentencing & Punishment for Penal Code 288.2 PC

Penal code 288.2(a) is a wobbler and therefore punishable as either a felony or misdemeanor. A misdemeanor conviction carries up to one (1) year in the county jail. A felony conviction is punishable in the state prison for 2, 3, or 5 years. However, if the material does not include the depiction of a minor or minors engaged in sexual conduct, then a felony conviction carries 16 months, 2, or 3 years in state prison. In addition, a conviction will require you to register as a sex offender.

Examples of Sending Harmful Material

• Dan was 21 years old and chatting online with Darla who is 13. Darla expressed an interest in meeting Dan in person, but she was hesitant. To persuade Darla to meet in person, Dan sent Darla nude photographs of himself in an effort to arouse Darla into meeting and getting intimate. Although Dan never actually met Darla in person, nonetheless, the crime was completed once Dan harbored the intent and sent the photographs to Darla.

• Bill is a graduate student in his late twenties. He tutors junior high school students in history. Bill e-mailed Sarah, a 14 year old student, a photograph of a portrait by Michelangelo which depicts nudity as part of their tutoring session. Thereafter, Sarah requested to meet Bill in person. In this case, since the painting had educational value as part of the tutoring session, Bill’s defense will be that he (1) did not intend to seduce Sarah by sending her the photograph of the painting, and (2) the photograph does not depict obscene or harmful matter.

Related Offenses

• Contact Minor for Sexual Purposes – Penal Code 288.3 PC
• Possession of Child Pornography – Penal Code 311.11 PC
• Arranging a Meeting with a Minor – Penal Code 288.4 PC
• Lewd Acts with a Minor Under 14 – Penal Code 288(a) PC
• Revenge Porn – Penal Code 647(j)(4) PC
• Statutory Rape – Penal Code 261.5 PC

Contact Us to Schedule a Free Consultation

Sex crime accusations carrying life-altering consequences and often require swift legal intervention. Speaking with law enforcement or a social worker without a lawyer can create irreparable harm to your defense. Accordingly, you must retain an experienced Newport Beach criminal defense attorney when faced with a serious accusation such as Penal code 288.2(a) pc. Contact the Law Offices of John D. Rogers today to schedule a free confidential consultation concerning your rights and defenses.[6]

Legal Footnotes

[1] Penal Code 288.2(a)(1) – (“Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or is guilty of a felony, punishable by imprisonment in the state prison for two, three, or five years. (2) If the matter used by the person is harmful matter but does not include a depiction or depictions of a minor or minors engaged in sexual conduct, the offense is punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for 16 months, or two or three years.”)

[2] The First Amendment of the United States Constitution guarantees freedoms concerning religion, expression, assembly, and the right to petition.  It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices.  It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.  It also guarantees the right of citizens to assemble peaceably and to petition their government.

[3] See People v. Hsu (2000) 82 C.A.4th 976, 983 [subdivision is not unconstitutionally vague or overbroad and does not violate Commerce Clause]; People v. Garelick (2008) 161 C.A.4th 1107, 1120 [subdivision does not violate Commerce Clause or First Amendment; because statute requires offender to communicate harmful matter to known minor with intent to seduce minor, it penalizes acts that occur within state and “punishes those who seek not discourse, but intercourse and other sexual activity and who have identified intended victims for pursuit and seduction”; quoting Hatch].

[4] See CALCRIM No. 1140 – Obscene or Harmful Matter.

[5] See Penal Code 288.2(g) – (“It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes.”)

[6] We represent clients in all southern California localities including Los Angeles, Riverside, San Bernardino, and San Diego.