Penal Code 288 PC - Lewd Acts with a Minor
California Penal Code 288 PC makes it a crime to commit any lewd or lascivious act with a minor, also called child molestation, touching a child under 14 for sexual purposes.
“Lewd and lascivious” behavior is generally described as sexual acts considered offensive to common standards of behavior and conduct regarding immoral sexual intent.
PC 288 lewd acts with a minor refers to a felony crime when an adult has sexual contact with a minor child, as either touching them for sexual gratification or causing them to feel themselves for a sexual purpose.
PC 288 says, "(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.
(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.
(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(c)(1) A 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.
(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), 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."
Of note is that a minor's consent to engage in sexual activity is NOT a valid defense because, under law, they can't give sexual consent.
Lewd and lascivious conduct is sexual activity that appeals to the lust, passions, or sexual desires of the defendant or victim. It typically requires some physical contact but not penetration. Let's review this state law further below.
What are Lewd Acts with a Minor?
PC 288 defines crimes involving lewd and lascivious acts and penalties based on aggravating factors. Prosecutions for lewd acts with a minor commonly involve showing that the child was touched or fondled on their sexual organ or child molestation occurred.
However, a perpetrator could be charged with lewd acts even if the touching was not on a sexual organ, over the child's clothing, or the child was touching the perpetrator.
Of note is that the intent is the primary element of the crime rather than whether sexual arousal occurred. Sexting becomes a crime when it involves a minor. Simply put, a lewd act is defined as either touching a child for sexual purposes or causing a child to touch themselves or someone else for a sexual purpose.
What Factors Must Be Proven for a PC 288 Conviction?
To convict someone of lewd acts with a minor, prosecutors will use police reports, witness statements, forensic evidence, etc.
The prosecutor has to prove, beyond a reasonable doubt, all the “elements of the crime” listed in California Criminal Jury Instructions 1110, including the following:
- You willfully and lewdly touched a part of a minor's body or caused them to feel their body or the body of another person;
- You committed the unlawful act with intent to arouse, appeal, or gratify the lust, passion, or sexual desires of yourself or the minor
As noted, the most critical factor in a PC 288 prosecution is that you had a specific intent to satisfy sexual arousal or desire.
What are the Related Crimes for PC 288?
- Penal Code 220 PC - assault with intent to commit a felony;
- Penal Code 287 PC - oral copulation with a minor;
- Penal Code 288(b)(2) PC - lewd acts by a caretaker;
- Penal Code 288(b) PC - lewd acts with minor by force or fear;
- Penal Code 288(c) PC - lewd acts with minor age 14 or 15;
- Penal Code 288.2 PC - send harmful material to seduce minors;
- Penal Code 288.3 PC – contact a minor to commit a felony;
- Penal Code 288.4 PC – arrange a meeting with a minor;
- Penal Code 288.5 PC - continuous sexual abuse of a minor;
- Penal Code 288.7 PC - sex with a child under the age of 10;
- Penal Code 289 PC - sexual penetration with a foreign object;
- Penal Code 311 PC - child pornography;
- Penal Code 243.4 PC - sexual battery;
- Penal Code 207 PC - kidnapping;
- Penal Code 269 PC - aggravated sexual assault on a child;
- Penal Code 647.6 PC - annoying or molesting a child.
What are the Penalties for PC 288?
Penal Code 288 PC is a “wobbler” that can be charged as either a misdemeanor or felony. The primary factors in how the case is filed include the following:
- The age of the minor;
- Age difference between perpetrator and the minor;
- Whether force, fear, duress, or threats of harm were used;
- Defendant's criminal record.
If convicted of PC 288 misdemeanor, the penalties will include the following:
- Up to one year in the county jail;
- A fine of up to $1,000.
If convicted of a PC 288 felony, the penalties will include the following:
- Up to three years in a California state prison;
- A fine of up to $10,000.
If the minor were under the age of 14, the penalties would include the following:
- Straight felony conviction;
- Three, six, or eight years in the state prison.
The punishment applies for lewd acts, including touching the private area, buttocks, or female breasts. If the case involves penetration or oral copulation, the penalties are more severe. It also includes more aggravated cases involving oral copulation, penetration, or other conduct.
In cases where force, violence, threats, or menace are used to accomplish the lewd acts, the penalties will be significantly increased, such as the following:
- 5, 8, or 10 years in state prison;
- A fine of up to $10,000.
Of note is that there are enhanced penalties when the minor victim is a dependent for whom the defendant was charged with acting as a caretaker.
Any defendant convicted under Penal Code 288(b)(1) will not be eligible for probation and must be sentenced to state prison.
Anyone convicted of committing lewd acts with a minor will be required to register as a sex offender for life under Penal Code Section 290 PC. Still, in some cases, they petition the court to reduce their sex offender registration term to 10 or 20 years.
A first-time offender convicted under this PC 288 will be placed in Tier 2 sex offenders and will be required to register for at least 20 years. However, lifetime registration (Tier 3) will still be required for a second or subsequent conviction under PC 288(a) or any conviction under PC 288(b)(i).
A conviction of a lewd act by force or threat against a minor under 14 is a “strike” and a “serious felony” under California Penal Code 667.61 PC “One Strike Law,” and
California Penal Code 667 PC “Three Strikes” Law.
What Are the Defenses for PC 288?
Our California criminal defense lawyers can use several strategies to challenge Penal Code 288 PC lewd acts with a minor, including the following:
- Touching was accidental;
- Lack of intent;
- Reasonable doubt;
- False allegation;
- Insufficient evidence.
Perhaps we can create some reasonable doubt as the alleged conduct probably occurred behind closed doors, and there are no witnesses.
Perhaps we can argue that you are the victim of a false accusation. Maybe we can prove the allegations are false by finding evidence that an adult coached them with other motives, such as anger or jealousy.
Often, the prosecution's case depends on the child's credibility, especially when there is no confession or physical corroboration. Perhaps we can argue that the child is lying.
Perhaps we can argue that the touching was accidental. Recall that the prosecution must show that you “willfully” touched the minor for a sexual purpose.
Perhaps we can argue that there was a lack of intent for sexual gratification. The crucial element is often difficult for a prosecutor to prove.
Perhaps through prefiling intervention, we can persuade law enforcement and the prosecutor not to file formal criminal charges in the first place.
Maybe we can negotiate with the police detective and the reviewing filing prosecutor and present mitigating information about your history, background, and reputation, along with any legal defenses that might apply before charges are filed. Contact our law firm for a free case review by phone or use the contact form. The Hedding Law Firm is located in Los Angeles, California.