When you are accused of any sex crime, especially one that involves a minor, the public will quickly judge you and presume that you’re guilty even when there’s no proof to substantiate the allegations. This scenario could have devastating repercussions on you, and it may also have a high possibility of ruining the relationship you had with your family and friends. Prosecutors prosecute sex offenses against minors more harshly since society ought to protect children from sexual exploitation and abuse. The punishment is significantly severe and usually leads to one bearing the sex offender title for life and state prison imprisonment.

Thus, it is for these reasons that you must hire a skilled sex crime criminal lawyer for expert legal representation if you are facing child molestation charges. An attorney may be capable of fighting the charges against you and getting you a win, case dismissal, or charge reduction. At Orange County Criminal Defense Attorney Law Firm, we offer expert legal counsel that’s aimed at having our clients prevail in their cases and have them avoid the sex offender registration requirement. Contact us as soon as possible so we can have enough time to build a winning defense. In this article, we focus on what the law says about engaging in lewd acts with a minor.

Defining the Crime of Lewd Conduct With a Child

PC 288(a) is the law that sets forth the crime of lewd conduct with minors. It defines it as any lascivious/lewd act carried out upon an under fourteen years minor’s body, intending to gratify, appeal to, or arouse either the perpetrator’s, the child’s, or someone else’s lust. A person violates PC 288(a) law when they willfully touch any body part of a child or willfully make a minor touch their (a child’s own or the perpetrator’s) body part or someone else’s body.

The Legal Definition of Elements of the Crime

Here is the meaning of the various terms used to define this crime:

Willfully

Someone does something willfully if they do it deliberately. That person doesn’t need to have had the intention to hurt another person, break the law, or benefit in any way by committing that act. This implies that any unintentional contact with a child, even if it’s a sex organ that’s making contact, doesn’t qualify as a lascivious act under PC 288.

Touching

For you to be considered to have violated this section of the law, you must have touched any body part of an under fourteen years child or caused the minor to touch themselves, you, or someone else. As per this law, “touch” means “coming into contact with.” But the touching must not be only on a sex organ or on one’s skin. It may also be on the other parts of one’s body and made through clothing or on the bare skin. Also, the actual arousal isn’t required. The main thing here is whether or not that contact-making was purposeful and meant to arouse or satisfy a given sexual desire.

Lewd Acts Achieved Through Fear/Force {PC 288(b)(1)}

Applying fear/force during your commission of lascivious deeds with a minor will lead to you facing harsher penalties. In particular, under PC 288(b)(1), you will face harsher penalties if you accomplished your lewd acts by force, duress, violence, threats, or menace that subjected the minor to fear of unlawful or immediate physical injury to that child or another person.

The Legal Meaning of Terms Under PC 288(b)(1)

Let’s look at what the terms used to define this crime mean:

Force

The kind of force the law requires for you to be convicted for violating PC 288(b)(1) must be greater than or significantly different from the unlawful touching itself.

Fear

You will be considered to have accomplished a lewd deed through fear if the victim (minor) is literally and reasonably scared, or if the child’s unreasonably scared and you’re aware of it, and still, you take advantage of the fear.

Duress

For PC 288(b)(1) purposes, duress means applying implied or otherwise direct threats of violence, force, hardship, retribution (revenge or payback), or danger, sufficient to make any reasonable individual give in to or otherwise do any act that they wouldn’t otherwise have submitted to or done.

The prosecution determines duress by the entirety of the factors in a case, including:

  • Threats to hurt the victim
  • A warning to the supposed victim that disclosing the abuse would jeopardize his/her family.
  • Physical control of the victim in case he/she tries resisting

When establishing whether or not lascivious conduct was achieved through duress, the jury might take into account all the factors, including:

  • The child’s age
  • The size variation between you and the victim
  • The relationship of the minor to you
  • The place where the interaction occurred

 

Menace

Menace means a statement, act, or threat showing the aim to harm someone.

Proving Sexual Intent

Intent or purpose is among the most challenging elements to establish in any given offense. Eventually, whether you did act with the intention the law requires for a conviction to take place is a fact left for the judge or jury to determine, considering all the facts of your case. Factors that the court could consider are:

  • Whether you and the supposed victim knew one another at the time of the crime
  • The circumstances under which the wrongful touching took place
  • The lack of innocent explanation
  • The kind of touching it was

Legal Defenses Against the Crime of Lewd Acts With a Child

Luckily, there are several ways you can defend yourself against PC 288 charges. However, you need a skilled attorney by your side who knows how to argue these defenses so you can stand a chance of winning.

Before we look at these defenses, remember that the minor’s consent isn’t a legal defense to PC 288 charges. As per the laws of California, a child can’t consent to unlawful sexual acts. It’s also worth noting that each case, victim, scenario, and suspect are different. An expert criminal defense attorney will need to evaluate the circumstances of your case before building a reliable defense strategy that will work.

General defenses include the following:

There Wasn’t Intent to Cause Arousal

PC 288 only forbids a touching that’s intended to sexually gratify or arouse the child, the perpetrator, or someone else. If you did not mean to sexually gratify or arouse yourself, the minor, or another person, then it isn’t child molestation.

The Minor is Lying

Usually, the prosecutor’s case revolves around the credibility of the child. This is particularly true where there’s no physical corroboration or a confession. For an expert sex crimes criminal defense lawyer to find out whether or not the minor is telling the truth, he/she will usually:

  • Interview the family, schoolmates, online contacts, and friends of the child
  • Subpoena the minor’s counseling, school, medical records, social networking accounts, and emails
  • Conduct an in-depth background check on the victim (the child) and any supposed witnesses

Often, investigations disclose that the victim was coached or has a given bias to accuse the suspect falsely. Or, an investigation could also reveal that the victim has a record of telling untruthful stories about other individuals.  If your lawyer can demonstrate these findings before the jury, it may undermine the credibility of the victim, and, ultimately, the prosecution’s whole case.

The Defense of Private Polygraph Examination

Another way you can defend PC 288 charges is taking a private polygraph exam then use the results in your favor. A lot of people think that it is only the police that can administer polygraph tests. However, private persons may also organize for a polygraph exam.

Although the results of private polygraphs can’t be presented in court, they may be beneficial to the defendant, the reason being these results can remain confidential except if the defendant passes.

How Private Polygraph Exams Work

At times, a defendant facing PC 288 charges holds that the accusations are not true, and nothing happened. In cases like this, the defendant’s lawyer may advise him/her to undergo a private polygraph test with an examiner of the lawyer’s choice. If the tests show that the defendant is lying, the results are shredded, and no one would know the polygraph test took place.

However, if the exam indicates the defendant is telling the truth, the results can be taken to the prosecuting attorney. Although the results aren’t admissible, they are usually sufficient to persuade the prosecutor, who does not want to try an innocent person.

It’s worth noting that the prosecutor may want the defendant to undergo a second polygraph test with the police polygrapher, and pass it too before dropping the case.

The Contact-Making Was Accidental

For the judge to convict you under PC 288, you must have willfully touched a child. Or, you must have willfully caused the child to touch themselves, you, or someone else. If your lawyer can prove that the touching was accidental, then you are not guilty.

The Victim is Mistaken

At times, a minor was touched wrongfully but gets confused about the perpetrator’s identity. This commonly happens when:

  • The accused was not known to the minor
  • The touching occurred in an unfamiliar or dark place
  • The minor was so young
  • The actual perpetrator was of a different race compared to the defendant

A skilled defense lawyer will investigate the facts of the offense you are alleged to commit thoroughly to find factors that can undermine the minor’s identification of you as the actual perpetrator.

The Child Does Not Fall Under the Age Category for the Offense

We have two forms of minor molestation prohibited under California PC 288. They are:

  1. Engaging in lascivious/lewd acts with a minor that’s under fourteen years
  2. Engaging in lascivious/lewd acts with any minor that’s fourteen or fifteen years and is younger compared to the defendant by, at the minimum, ten years.

By this, it means that you won’t be found guilty under Penal Code 288 in case the child was fourteen or fifteen years and not more than ten years younger than you or the child is over fifteen years during the commission of the offense. However, note that you can still be charged with other crimes, like statutory rape under PC 261 or sexual battery under PC 243.4.

You Were a Victim of Unlawful Search or Other Police Misconduct

Sex-related crimes against minors are prosecuted harshly in California. When proof in a Penal Code 288 prosecutor’s case is illegally acquired in that it violates your constitutional rights, an expert sex crime attorney may be capable of getting it discarded. Ways the prosecutor or police can breach your rights under PC 288 include police misconduct like planted evidence or false testimony, an unlawful search & seizure, entrapment, or coerced confession.

Penalties for PC 288

Consequences of violating Penal Code 288 vary considerably based on the child’s age, whether or not threats, fear, duress, or force was applied, and the criminal record of the defendant. Here are the various possible scenarios a defendant may face and their consequences.

Child Below the of Fourteen Years, No Threat, Fear or Force Used

In case the minor you willfully touched was under fourteen years, you will be charged with a felony. If you did not use force, you would be charged under PC 288(a). The possible penalties for lewd acts under Penal Code 288(a) may include eight, six, or three years of a prison sentence and up to $10,000 in fines.

Alternatively, the court may grant you probation, which involves a maximum county jail sentence of one year and other probationary conditions. However, even if you don’t serve any prison time, PC 288 will still count as a felony sex crime.

Note that not all PC 288(a) offenders are eligible for felony/formal probation. For you to qualify, the judge will consider different factors that are related to the criminal history of the defendant (if any) and the circumstances surrounding the crime. Felony probation has various conditions that might include serving a maximum jail sentence of one year.

Lewd Act By Use of Threat, Fear or Force Upon a Minor Under Fourteen Years

If you committed a lascivious act upon a child that’s below the age of fourteen, and you accomplished the deed through violence, duress, force, or threats, you will have violated PC 288(b)(1). This crime is also a felony. Possible consequences for this crime can include ten, eight, or five years in prison and up to $10,000 in fines. An important point to note is that if you are convicted under Penal Code 288(b)(1), you don’t qualify for a probation sentence. You have to face a prison sentence.

Lewd Act Inflicting Physical Injury Upon a Victim Under Fourteen Years

California has several laws under which penalties for a lascivious and lewd act could increase drastically if the minor is hurt. These include:

  • PC 667.61(d)(7) - Twenty-five years in prison to life in prison for having personally caused bodily injury upon a victim that’s under fourteen years.
  • PC 288(i)- Life in prison for having personally caused physical harm upon a victim that’s below fourteen years
  • PC 12022.8 - A five-year sentence increment for inflicting significant physical injury

The prosecuting attorney can prosecute you under all or one of these laws. Consequently, should you inflict bodily injury upon a minor that’s below the age of fourteen years during the commission of a lewd act, you will face a sentencing enhancement that ranges from an additional five years in prison to life imprisonment.

If the Minor Was Fifteen or Fourteen Years

It’s an offense under PC 288(c)(1) for you to commit lewd acts against a fifteen or fourteen-year-old minor if you are at least ten years older than the victim. PC 288(c)(1) is a wobbler crime, which means the prosecutor can charge a defendant with either a felony or a misdemeanor. Prosecutors usually consider the circumstances surrounding the case when deciding what charge the accused will face.  They also look at the past criminal history of the defendant (if any). The punishments of Penal Code 288(c)(1), if it’s a misdemeanor, the punishment includes a maximum jail sentence. Note that even if it’s a misdemeanor offense, a PC 288 violation requires that the defendant registers as a sex offender.

If convicted of a felony, a PC 288(c)(1) violation has the following consequences: three or two years, or sixteen months in prison or otherwise felony probation that can include a maximum jail sentence of a year.

When the Child is Seventeen or Sixteen Years

In case the victim was seventeen or sixteen years old during the commission of a lascivious or lewd act, you won’t be charged under PC 288. Instead, you will face charges under either PC 261.5, statutory rape statute, or PC 243.4(a), sexual battery statute.

Second/Subsequent Conviction Under PC 288

Apart from being charged under Penal Code 288, if you’ve got a past conviction of any sex offense, you can face PC 667.71(b) charges of a habitual sex offender. If the prosecution proves that you are a habitual sex offender, you will face twenty-five years in prison to life imprisonment.

Additional Penalties for a Conviction Under PC 288

If you are found guilty of a lascivious deed with a child, you may face other punishments apart from a fine and incarceration. Collateral repercussions of being convicted of committing lewd acts with a minor include:

  • Mandatory sex offender registration requirement
  • Victim restitution, i.e., paying the victim’s psychological or medical treatment
  • Possible loss of one’s professional license, for instance, the license that enables one to practice medicine or law

The Sex Offender Registration Requirement

Any person found guilty of lewd/lascivious acts under PC 288 has to register as a sex offender. A judge doesn’t have the preference to lift the defendant’s obligation of sex offender registration.

But if you are facing these charges, an experienced sex crimes criminal defense lawyer may be capable of getting you a plea deal to a less severe crime. In doing so, your attorney will help you avoid the requirement to register as a sex offender, for example, PC 242, simple battery. 

The current law requires that any person that’s found guilty under any section of Penal Code 288 law has to register as a sex offender for life. But starting the 1st of January 2021, sex offenders under this statute will be categorized into three levels that will base on how severe the offense is. They will include:

Lifetime Registration-Tier 3

Offenders of the strictest sex crime under PC 288 will be categorized under Tier 3. This level requires lifetime sex offender registration. It will include second/subsequent offenders as per PC 288a and any offender as per PC 288(b)(i).

Registration for Twenty or More Years

Any first-time sex offender that’s found guilty of violating PC 288(a) law will be classified under Tier 2. Any sex offender under this category will be subject to the sex offender registration requirement for twenty years.

Probation and Mitigation

At times, there may be a situation where the defendant has confessed to committing the offense, or the proof clearly shows he/she committed the crime.  In cases like these, the strategy is generally not to claim that the lascivious/ lewd act never happened. Instead, the lawyer tries to prove that those charges stemmed from an isolated incident and that this kind of behavior will unlikely ever reoccur.

For an attorney to achieve this, he/she will focus on the defendant’s good character as well as other mitigation factors of felony sentencing.

When a lawyer succeeds in his/her argument, the defendant will receive probation rather than a prison sentence. Probation carries a maximum county jail sentence of one year and, at times, no jail sentence whatsoever.

How Mitigation Works

Before the judge grants you probation, he/she has to obtain a PC 288.1 mental evaluation report by a certified psychiatrist or psychologist. The psychologist/psychiatrist will interview you and consider the factors surrounding your offense and your criminal history. He/she will focus on whether you pose any danger to the other minors and whether there’s a likelihood of the conduct happening again.

The judge isn’t required to request the PC 288.1 report. However, it could do so at its discretion. Should your report favor you, your attorney can utilize it to challenge the case so that you are sentenced to probation rather than spend time in prison.

Statute of Limitations for a PC 288 Prosecution

Recently, California implemented several laws that drastically increase the timeframe in which sex offenses against children should be prosecuted. As per PC 801.1, prosecution for felony offenses of lewd acts with a child can begin at any period before the minor turns forty years. Because most crimes under Penal Code 288 are charged as felonies, it means prosecutions for lascivious/lewd acts on a minor could be commenced after twenty-five or more years from when the supposed acts occurred. 

Practically, the more the supposed victim delays in reporting the sex offense committed against them, the more challenging it will become to prosecute the case.

Contact a Sex Crimes Attorney Near Me

At Orange County Criminal Defense Attorney Law Firm, we believe the best strategy to defeat sex crime charges is early defense lawyer intervention. That is why we advise you to reach out to us as soon as you get charged. Call us at 714-740-7848 to share the details of your case and for a free consultation. We will evaluate these details and give you crucial guidance that will help to fight the charges you are facing.