Lewd and Lascivious Acts with a Minor Child PC 288
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Children carry our hope for the future. As the most innocent and vulnerable among us, they deserve protection from harm. So when we find out that an adult has used and mistreated a child for their own selfish pleasure, it’s only natural to want to see justice done.
It’s critically important, however, that our zeal for protecting children doesn’t cause us to prematurely condemn an innocent person.
The sad reality is that many people accused of sex crimes aren’t actually guilty of committing them. In order to ensure actual justice is done, we must carefully evaluate the facts of a case without letting emotion cloud our judgment. This is especially true in heated cases of alleged child molestation.
If you or a loved one has been accused of committing lewd acts with a minor, you need to understand that the stakes are incredibly high. Because of the nature of these allegations, many people will assume guilt before actually hearing the facts of the case, and a conviction—regardless of innocence or guilt—can ruin the accused’s life in more ways than one.
That’s why it’s essential to partner with a criminal defense attorney with the resources and experience to design a robust, rock-solid defense strategy. This article will explain everything you need to know about child molestation charges, including what constitutes a lewd act with a minor, the role of Penal Code 288, penalties for conviction and more.
At Elite Criminal Defense, we know that sex offense charges—particularly those involving children—can turn your whole world upside down. Building a top-tier defense takes time, which is why you need to secure legal advocacy now. Call us at (619) 642-2310 to get started.
What Constitutes a Lewd Act with a Minor?
Before you can defend yourself against false accusations, you need to understand what you’re up against. It’s important to understand that if you’ve been charged with lewd and lascivious acts with a minor child, you’re essentially being accused of child molestation.
California Penal Code 288 defines lewd and lascivious acts with a minor child as touching “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.”
Most criminal prosecutions for sexual acts with a minor involve accusations that a child’s body—specifically their sexual organ—was touched or fondled, or that they were overtly molested. However, these elements don’t necessarily need to be present in order to precipitate a charge. Defendants may also be charged with lewd acts even when the following are true:
- The touching occurred on a part of a child other than a sexual organ.
- The touching was done over a child’s clothing (as opposed to on bare skin).
- The child committed the touching (at the defendant’s urging).
It’s important to note that as far as the law is concerned, actual arousal does not have to take place in order for touching to be considered a crime. Rather, it is the defendant’s intent to achieve sexual arousal, arouse the child or arouse someone else that makes this act illegal.
Penalties for Lewd Acts with a Minor
Let’s be clear: Any child molestation conviction can devastate your life, regardless of the specific penalties you incur. Even the suggestion that you’ve had sexual contact with a child is enough to decimate your social and professional life, ruin family connections and more, which is why it’s critical to avoid conviction.
That being said, some penalties are much harsher than others and should be avoided at all costs. Specific punishments depend on a number of key factors, including the following four:
- The age of the child
- Whether the lewd act was committed through the use of force, violence, duress or threats
- Whether the defendant has a pattern of continuous sexual abuse
- In cases where the child is 14 or 15, the defendant’s age
California law surrounding sex crimes and their corresponding penalties can be complex and involve multiple contingencies. Here are some of the various categorizations of lewd acts and their corresponding penalties under PC 288:
- When the child is under 14 and no force is used, a conviction may carry three, six or eight years in prison or under formal (felony) probation and a fine of up to $10,000.
- When the child is under 14 and force is used, penalties may include a five, eight or 10-year prison sentence and a fine of up to $10,000.
- When the child is under 14 and bodily injury is inflicted, the penalty may be life in prison.
- When the child is 14 or 15 years old and the defendant is at least 10 years older, penalties may include one to three years in prison and a fine of up to $10,000 or up to one year in county jail and a fine of up to $1,000.
- When the child is 16 or 17 years old, the offense may be prosecuted as statutory rape or sexual battery and be penalized accordingly.
- If the defendant is deemed a habitual sex offender, they may face 25 years to life in prison.
- When the lewd act is accomplished through force by the caregiver of a dependent person, penalties may include five, eight or 10 years in California state prison and a fine of up to $10,000.
It’s important to note that in these examples, “force” also includes “duress” and “threats of harm.” This is by no means a comprehensive list of lewd acts and their penalties, but rather an illustration of how circumstances affect sentencing. There are many aggravating and mitigating factors that can affect your case’s final outcome, as well as your sentencing.
Lewd Acts Accomplished by Force or Fear
One of the most influential factors when determining penalties for lewd acts is the perpetrator’s means of accomplishment. For example, if the defendant is believed to have used force or fear to coerce a minor into performing lewd acts, they may be subject to much harsher penalties.
Here are some important legal definitions to know when talking about the means of accomplishment:
- Force is when someone restrains, incapacitates, threatens or hits a child for the purpose of committing lewd acts
- Fear refers to making a child feel afraid in order to compel them into participating in lewd acts
- Duress refers to when someone uses an implied threat of force, violence, danger, hardship or retribution for the purpose of making a reasonable individual submit to something that would otherwise not consider
- Menace refers to when someone uses threats, statements or actions to imply their intent to injure someone
If a defendant is found guilty of using any type of force, violence, duress or menace against a child to accomplish lewd acts, they may face felony conviction, fines, registration as a sex offender and more.
Additionally, a conviction of a lewd act by force or threat against a minor constitutes both a “strike” and a “serious felony” under California Penal Code 667. Under California’s “One Strike Law” (Penal Code 667.61), a defendant who personally inflicts bodily harm on a child under 14 must be sentenced to 25 years to life, and under its “Three Strikes” law, a defendant with a prior strike conviction will face an enhanced sentence.
California Sex Offender Registration
Conviction of lewd acts against a minor doesn’t just result in hefty fines and prison time—it also means registration as a sex offender. This classification is anything but casual; it can haunt a person long after they’ve served their sentence, alienating family members, friends and future job prospects.
Under Penal Code 288, a person convicted of lewd and lascivious acts with a child is required to register as a California sex offender. California divides these sex offenders into the following three tiers based on the severity of their offense:
- Tier 1, which incurs a minimum registration period of 10 years
- Tier 2, which results in a minimum registration period of 20 years
- Tier 3, which means lifetime registration
Whereas a first-time offender of lewd acts with a minor will likely be placed in Tier 2, any person convicted of a second or subsequent offense under PC 288 will be placed in Tier 3. That means they will face a lifetime registration as a sex offender.
Common Defenses to PC 288 Charges
If you’ve been accused of lewd acts with a minor, you may be feeling scared, embarrassed and even humiliated. However, it’s important not to lose hope—there are several possible defenses you may be able to use to clear your name. Here are some of the possible defense strategies your lawyer may suggest:
- The child’s testimony was coached or coerced. It’s possible that someone is using a child’s testimony to hurt you or get back at you for something. If you can prove that a child’s testimony is false, manufactured or the product of coercion, you may be able to avoid conviction.
- Your accuser is mistaken. Even adults make mistakes in identifying the person who hurt them, and children are even more susceptible to confusion—especially when they’ve been through a traumatic experience. Your accuser may know they’ve been molested but be mistaken about the person who hurt them.
- The touching was accidental. In some situations, people aren’t aware they’re crossing someone else’s boundaries and acting inappropriately. An accuser may have interpreted your actions as lewd when in fact you had no intention of molesting them or becoming aroused.
- You had no intent to arouse. Remember: In order to be found guilty of lewd acts with a minor, the prosecution will need to prove you engaged in these acts with the intent to become aroused, arouse the child or arouse someone else.
- The minor doesn’t fit the age criteria. It’s possible to be accused of committing a lewd act against a minor who doesn’t actually fit the criteria for the charge. A careful examination of your case details with an attorney can reveal discrepancies that result in your charges being dropped or reduced.
Being accused of a crime you didn’t commit is confusing, upsetting and even terrifying. Just because you were accused, however, doesn’t make you guilty. A skilled criminal defense lawyer can help you select the best legal defense for your situation.
Frequently Asked Questions
The laws surrounding sex crimes in California are complex, especially when they involve minors. The best way to find answers to your questions is by speaking with a legal professional. In the meantime, check out the answers to some of our most frequently asked questions.
- What is the statute of limitations for lewd acts with a child in California?
In the past, California felony sex crimes had a 10-year statute of limitations from the time the alleged victim turned 18. However, California no longer enforces a statute of limitations for PC 288 offenses, as long as they occurred on or after January 1, 2017. - Will I have to register as a sex offender?
Whether or not you have to register as a sex offender for a conviction of a PC 288 offense depends on whether or not you’re convicted. If you’re found guilty, you will be forced to register as a California sex offender, although the amount of time you’ll have to carry that label will depend on the nature of the crime. - Can a minor be charged with PC 288?
In California, minors 14 years of age and older may be charged with a PC 288 offense and face the same penalties as an adult. However, that doesn’t necessarily mean that the prosecution will press forward with PC 288 charges, especially when there are extenuating circumstances, such as the defendant also being the victim of abuse. - Can PC 288 be a misdemeanor?
In most cases, a PC 288 offense is considered a felony. However, there are exceptions, which is why some legal experts consider PC 288 a “wobbler,” meaning it could go either way. For example, PC 288 offenses are sometimes considered misdemeanors as part of a plea bargain, when they involve first-time offenders, when the age difference between the alleged victim and offender is relatively small and when there is no provable sexual intent. - Does conviction under PC 288 require penetration?
It’s a common misconception that a PC 288 offense needs to involve sexual penetration or sodomy in order to result in a conviction. Any inappropriate touching, fondling or sexually explicit behavior with the intent to cause arousal can result in conviction.
Elite Criminal Defense: Trusted Criminal
Defense Attorneys in San Diego
Being accused of a crime you didn’t commit is a lonely, terrifying place to be—especially when the charges involve sex crimes against children. If you’ve been accused of committing lewd and lascivious acts against minors in the State of California, you’re in a world of legal trouble. The sooner you start building your defense, the better chance you have of beating erroneous criminal charges.
The talented team at Elite Criminal Defense is here to help. With more than 20 years of experience defending cases like yours, we have the experience, resources and perspective you need to turn your legal situation around. Ready to start defending your future? Get started by scheduling an initial consultation with our law firm today.
