Penal Code 288.2 PC - Sending Harmful Material to Seduce a Minor
California Penal Code 288.2 PC is the statute making it a crime to send, distribute, or exhibit harmful or obscene material to a minor under 18 when intending to arouse and engage in sexual intercourse, sodomy, oral copulation, or sexual contact with them.
Simply put, this law prohibits sending or distributing harmful material to minors of a sexual nature, including email, text, internet, or another method of delivery. Harmful material often includes minors engaged in engaged in sexual contact.
Intent is a crucial factor in being charged with PC 288.2. In other words, it must be proven that you sent or distributed harmful material with the intent of arousing, appealing to, or gratifying the sexual desires of either the minor or yourself.
Further, it must also be proven that you intended to engage in sexual contact with the minor or to persuade them to either allow you to touch an intimate body part of their body or to encourage the minor to touch an intimate body part of your body. This sex crime law is focused on people who attempt to induce minors to engage in sexual conduct with adults by sending harmful material to those minors.
PC 288.2 says, “(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 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.”
What Factors Must Be Proven for a PC 288.2 Conviction?
To convict you of violating Penal Code 288.2 PC by sending obscene material to a minor, the prosecutor must prove several factors called the “elements of the crime,” including the following:
- You knowingly distributed, sent, exhibited, or offered harmful matter to a minor by any means, such as electronic communication,
- You knew the person was a minor, or you failed to exercise reasonable care to determine their age,
- At the time you acted, you had intent to arouse the lust, passions, or sexual desire of yourself or the minor,
- You had the intent to seduce the minor, which means enticing them to engage in physical sexual conduct.
Notably, the prosecutor does not have to prove there was any actual physical contact between you and the minor. In other words, just sending the harmful material is sufficient for a conviction under this law.
California Penal Code 311.4(d) says, “sexual conduct” means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, an exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of sexual conduct.”
What is Harmful Material?
Under California law, a prosecutor must prove the material sent to the minor could be harmful, which means the following:
- It shows or describes sexual conduct offensively,
- Any reasonable person would conclude the material lacks any artistic or educational value for minors but is a deplorable interest in nudity or sex,
- An obscene magazine, video, printed material, pictures, drawings, photographs, or movies.
California Penal Code 313 PC says, “(a) “Harmful matter” means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
(b) “Matter” means any book, magazine, newspaper, video recording, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction or any other articles, equipment, machines, or materials. “Matter” also includes live or recorded telephone messages when transmitted, disseminated, or distributed as part of a commercial transaction.”
What Are the Related Crimes for PC 288.2?
Several California laws are related to PC 288.2, sending harmful matter to seduce a minor, including the following:
- Penal Code 288 PC - lewd acts with a minor, which includes touching a child for sexual purposes or causing a child to touch yourself or another person.
- Penal Code 273a PC - child endangerment if you willfully expose a minor under 18 to unjustifiable pain, suffering, or danger.
- Penal Code 311 PC - child pornography laws make it a crime for someone to send, transport, duplicate, print, advertise, possess child porn, or hire or persuade minors to participate in making porn images.
- Penal Code 647.6 PC – annoying or molesting a child,
- Penal Code 288.3 PC – contact a minor to commit a felony,
- Penal Code 288.4 PC – arrange a meeting with a minor for lewd purposes,
- Penal Code 288.5 PC – continuous sexual abuse of a child,
- Penal Code 288.7 PC – sex with a child under 10,
- Penal Code 646.9 PC – stalking or cyberstalking.
What Are the Penalties for PC 288.2?
California Penal Code 288.2 PC sending harmful material to the minor is a “wobbler” that can be charged as either a misdemeanor or felony crime, depending on the circumstances and your criminal history.
- If convicted of a misdemeanor, the penalties include up to one year in county jail and a fine of up to $1,000.
- If convicted of a felony, the penalties include up to three years in state prison and a fine of up to $10,000.
- A felony conviction requires registration as a sex offender for life as a tier-three offender defined under California Penal Code 290 PC.
- If the matter used is harmful matter but does not include a depiction of a minor 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.
As noted, PC 288.2 felonies will result in a mandatory duty to register as a sex offender under California's Sex Offender Registration Act as a tier three lifetime sex offender. Failing to register as a sex offender under PC 290 can result in separate felony charges and additional penalties.
What are the Best Defenses for PC 288.2?
Suppose you are accused of sending harmful material to a minor, violating Penal Code 288.2 PC. In that case, our California criminal defense lawyers can use different strategies to fight the case, as discussed below.
Perhaps we can argue mistaken identity, especially in cases involving the electronic transmission of harmful material. Often, it can be difficult for the prosecution to prove beyond a reasonable doubt that you were responsible for transmitting the material when it was through social media, for example.
Perhaps we can argue there was a lack of sexual intent in the communication. Maybe we can say that you reasonably believed the person you communicated with was not a minor. Perhaps we can argue that the material does not fall under the definition of “harmful.” In other words, it was not obscene.
Perhaps we can argue that you had no intent to seduce the minor, which is described as attempting to persuade them to engage in sexual activity. Perhaps we can negotiate with the prosecutor for reduced charges or case dismissal or persuade them not to file charges, called a “DA reject.” For a free case evaluation, contact the Hedding Law Firm. We are located in Los Angeles, CA.