Under California law, committing a lascivious act with a minor is a serious offense. The crime of engaging in lewd acts with a minor is outlined under Penal Code 288. You can commit a lewd act with a child if you touch a minor under 14 years to sexually gratify yourself, a third party, or the child. This offense has far-reaching consequences, including hefty fines and a jail term. A conviction could also make you lose friends, your job, and support from family and colleagues. If you are accused of violating PC 288, the California Criminal Lawyer Group can help you fight your charges in Fresno.

Understanding Lewd Acts With A Minor

A lewd act with a minor is defined under PC 288 as

  • Any lascivious or lewd act on a child aged below 14 years,.
  • With the intent of gratifying or arousing your lust, that of the minor or someone else.

You could be guilty of a lewd or lascivious act when you do the following:

  • Willfully touch any part of a child's body.
  • Willfully causes a juvenile to touch your body, their own body, or someone else's body.

Acting Willfully

You commit an act willfully if you do it on purpose. You do not need to intend to violate the law, gain any advantage, or harm someone else. Any contact with a minor that is accidental, even if the touch is on a sexual part, does not amount to a lewd act, according to PC 288.

Meaning Of Touching

You could only be guilty under PC 288 if you touched any part of a minor's body or caused a minor to touch themselves or another person. Touching, however, does not have to be on a sexual part or the bare skin. Additionally, you do not have to achieve actual arousal to face charges under PC 288. What is considered is whether your touch was on purpose and aimed at causing arousal to satisfy a sexual desire.

Lewd Act Accomplished By Fear or Force — Penal Code 288(b)(1)

You could face severe penalties if you use force or fear to commit a lewd act on a minor. The court could impose a harsher punishment under PC 288(b)(1) if you accomplish the act by force, violence, duress, or menace. You could also face severe punishment if you accomplish the act by making threats that put the minor in fear of immediate and unlawful harm to them or another person.

Using Force

You could be convicted under PC 288(b)(1) if you use force significantly different from or greater than the wrongful touching.

Use Of Fear

You can accomplish a lewd act out of fear if:

  • A child is actually and reasonably afraid, or.
  • A minor is unreasonably scared, and you are aware, and you take advantage of it.

Meaning Of Duress

Duress is defined under 288(b)(1) as the use of a direct or implied threat of force, danger, or violence enough to make a reasonable person do something that he/she would not do under normal circumstances. Duress is determined by circumstances, such as:

  • Threats to cause bodily harm to the victim.
  • Controlling the victim physically if he/she tries to resist.
  • Sending warnings to the victim that indicate molestation that would jeopardize their family.

The judge will consider all the circumstances when deciding whether a lewd act was accomplished by duress. Some of the circumstances include:

  • The minor's age.
  • Your relationship with the child.
  • The size difference between you and the minor.
  • The place where you interacted with the minor.

Meaning Of Menace

Menace is defined under California law as a statement, threat, or act indicating an intent to harm another person.

Proving Sexual Intent

It is typically hard to prove intent. It is at the jury's discretion to decide whether you acted with the required intention, considering all the factors. The jury can consider the following factors:

  • The context in which the touching happened.
  • The nature of the touching.
  • Lack of innocent explanation.
  • Whether you and the minor know each other.

Penalties For Violating Penal Code 288

You will face charges and penalties under 288 depending on the following:

  • The minor's age.
  • Whether you used force or threats.
  • Your criminal record.

A Lewd Act With A Minor Below 14 Years Without Use Of Force Or Threats

You could face felony charges if you commit a lewd act with a minor under 14 years. You could face charges under PC 288(a) if you did not use force in the act. In this case, the penalties you could face include:

  • A fine that does not exceed $10,000.
  • A jail term of up to three, six, or eight years in a state prison.

The judge could offer you probation and a jail term of one year in a county jail. However, a violation of PC could still be a felony sex offense even if no prison time is served.

The court will consider several factors before granting you probation. Some factors include your criminal record and the facts of your offense.

A Lewd Act With A Minor Below 14 Years Using Force Or Threat

You could be guilty of violating PC 288(b)(1) if you commit a lewd act with a minor below 14 years using force, threats, coercion, or violence. The penalties you could face for this conviction can include a fine that does not exceed $10,000. You could also face a jail term of up to five, eight, or ten years in a state prison. You do not qualify for probation if convicted under PC 288(b)(1).

A Lewd Act With A Minor Below 14 Years Causing Bodily Harm

If a minor is injured in a lewd and lascivious act, you could face enhanced punishment under several statutes. These include:

  • Life sentence for personally causing bodily injury on a minor below 14 years as outlined by PC 288(i).
  • 25 years to life imprisonment for personally causing bodily injury on a minor below 14 years as explained PC 667.61(d)(7).
  • Additional five-year jail term for causing a significant bodily injury on a victim below 14 years, according to PC 12022.8.

Bodily harm and great bodily injury under the above laws mean any significant physical injury.

A Lewd Act With A Minor Below 14 Or 15 Years

According to PC 288(c)(1), it is an offense to commit a lewd act with a minor under 14 or 15 years if you are at least ten years older during the act. Judges usually treat a violation of PC 288(c)(1) as a wobbler crime. In this case, you can face felony or misdemeanor charges. The charges will depend on your criminal record and the facts of your case. If the judge convicts you of a misdemeanor, you could face a jail term that does not exceed one year in a county jail. You could also be ordered to register as a sex offender even if you are convicted of a misdemeanor.

If the judge convicts you of a felony under PC 288(c)(1), you could face felony probation, including a  mandatory jail term that does not exceed one year in a county jail. You could also face a jail term of 16 months, two years, or three years in a state prison.

A Lewd Act With A Minor Below 16 Or 17 Years

You could face charges under PC 288 if the minor involved was 16 or 17 during the act. You could also face charges under the following statutes:

  • Sexual battery law — PC 243.4a.
  • Statutory rape law — PC 261.5.

Second Or Subsequent Conviction

Apart from being convicted under PC 288, you could be convicted under PC 667.71(b), habitual sexual offender law, if you have a prior sex crime conviction. You could face a jail term of up to 25 years to life in a state prison if you are found guilty under PC 667.71(b).

Additional Punishment For Violating PC 288

If the judge convicts you of a lewd act with a minor, you could face additional repercussions apart from a fine and a jail term. You could face collateral repercussions for this crime that can include:

  • Loss of professional license, like a license to practice medicine or law.
  • Victim restitution, including payment for the minor's medical or psychological treatment.
  • Registration as a sex offender.

Sex Offender Registration

You must register on the "Megan's Law" sex offender registry if the court convicts you of lewd acts with a child under PC 288. The judge has the authority to relieve you of the responsibility to register as a sex offender. In addition, your attorney can secure a plea bargain for a crime that does not require registration as a sex offender. For example, your attorney can secure a simple battery charge under PC 242.

According to the law, you must register as a sex offender for life if you are convicted of a lewd act with a minor. However, since January 2021, sex offender registrations have been under three tiers. The tiers are categorized according to the severity of the crime.

Sex offenders under Tier 3 are required to register as sex offenders for life. These are individuals who have committed serious sex crimes. Generally, Tier 3 includes:

  • A second or subsequent charge under PC 288(a) or.
  • Any charge under PC 288(b)(i).

Sex offenders under Tier 2 are required to register as sex offenders for 20 years or more. These individuals have committed a sexual crime for the first time under PC 288(a).

Defenses Against PC 288 Charges

You could use several legal defense strategies to defend yourself against PC 288 charges. Some of the defenses include:

You Are A Victim Of Unlawful Search Or Other Police Misconduct

Sexual crimes against minors are prosecuted vigorously. The arresting officers can subject you to an illegal search and seizure or engage in other forms of police misconduct. Your attorney can have the prosecutor's evidence excluded from your case if the evidence was obtained in violation of your constitutional rights or the law. The law enforcement officer or prosecutor can violate your constitutional rights in the following ways:

  • Entrapment.
  • Coerced confessions.
  • Police misconduct, like planted evidence or false testimony.
  • Unlawful search and seizure.

The Child Does Not Fit The Age Criteria For The Offense

Penal Code 288 prohibits the following:

  • Engaging in a lewd act with a minor below 14 years.
  • Engaging in a lewd act with a minor below 14 or 15 years of age who is at least ten years younger than you.

Therefore, you cannot face charges under PC 288 if:

  • The minor is above 15 years old.
  • The minor is 14 or 15 years old and less than 10 years younger than you.

However, you could be convicted under PC 243.4, sex battery, and PC 261, statutory rape.

You Had No intention To Arouse

You are only guilty under PC 288 if you make contact with a child to sexually arouse yourself or the minor. You will not face child molestation charges if you did not intend to sexually arouse or gratify yourself or the minor.

It Was An Accidental Touching

You must willfully touch a minor to face charges under PC 288. You can also be convicted under this statute if you willfully cause a child to touch you, themselves, or someone else. You will not be guilty if the contact was accidental.

You Are A Victim Of Mistaken Identity

Sometimes, the minor could be touched inappropriately but confuse the perpetrator's identity. The child could mistake you if:

  • You are not familiar with the child.
  • The touching happens in an unfamiliar place or the dark.
  • You are a different race from the minor.
  • The minor is very young.

Your attorney will thoroughly investigate the circumstances of the alleged crime to look for evidence to challenge the minor's identification. Your charges can be dismissed if your attorney convinces the judge that you are not the perpetrator of the crime.

The Child Is Lying

The prosecutor's case always relies on the credibility of the minor. This is usually true where there is no physical corroboration or confession. Your attorney can do the following to determine whether the child is being truthful:

  • Carry out a thorough background check on the minor and the alleged witness.
  • Interrogate the minor's schoolmates, friends, family, and online contacts.
  • Subpoena the minor's school, counseling, and medical records, emails, and social networking accounts.

Private Defense Polygraph Examinations

A private defense polygraph examination is one of the methods you could use to challenge your PC 288 charges. Law enforcement is often associated with "lie detector tests." However, private individuals can also organize polygraph examinations. Private polygraph results can benefit you even if they are not admissible in court. The outcome can be kept secret unless you die.

How A Private Polygraph Examination Works

At times, when the prosecutor accuses you of violating PC 288, you can insist that the allegations leveled against you are false and that nothing happened. In this case, you could be allowed to sit for a private lie detector test with one of the examiners. Examiners consist of retired police or FBI polygraphers. Their work has significant credibility with the District Attorney.

If the exam indicates that you are being deceptive, the examiners will shred the outcome and never let anyone know that the polygraph happened. On the other hand, if the exam indicates that you are being truthful, the examiners will take the outcome to the prosecutor. The results are always sufficient to persuade the district attorney, even though they are not admissible in court. In some incidents, the prosecutor will demand that you take a second, follow-up polygraph with a police polygrapher and pass it before your case is dismissed.

Mitigation And Probation – Penal Code 288.1 Report

Sometimes, you can confess to law enforcement that you committed a crime. The evidence can also clearly support the allegations leveled against you. In this case, barring a legal technicality, your attorney's strategy is not to claim that a lewd act never occurred. Instead, he/she will attempt to prove that your charges occurred in an isolated case. He/she would also pledge that such behavior is unlikely to happen again. Your attorney will do this, focusing on your good character and other felony sentencing mitigating factors.

If your attorney succeeds, you could be granted probation instead of a jail term. Probation can be accompanied by a mandatory jail term of up to one year in a county jail and, at times, can be without a jail term.

How PC 288.1 Mitigation Works

The court must obtain a mental evaluation or PC 288.1 report before the judge grants you probation. A trained psychiatrist or psychologist secures the report. The psychiatrist will interview you and look at the following:

  • Your history.
  • The circumstances of the crime.

The above examination aims to determine whether you are dangerous to other minors. The exam also determines whether your behavior is likely to recur. The judge is not allowed to order a PC 288.1 report but could do so at their discretion. Your attorney can use the report to negotiate for probation if favorable.

Investigation Of Lewd Acts By Law Enforcement

Law enforcement agencies use significant resources to investigate sex offenses against minors, including claims of lewd acts with a minor. Most law enforcement agencies have special units or departments that focus on child sexual abuse. These cases are usually handled by detectives with specialized training in dealing with child victims and forensic science. The typical procedure for a lewd act investigation is as follows:

The Law Enforcement Receive A Report Of The Alleged Act

Most PC 288 cases start with the minor reporting the alleged incident. At times, the minor will reach out to law enforcement directly. The minor could also report to an authoritative adult like a school counselor, teacher, parent, or relative. The adult could then reach out to law enforcement.

At times, the child will document the incident of lewd acts long after it happened. An adult could also report the abuse from when he/she was a minor. The minor could claim that:

  • He/she was confused or afraid to report earlier.
  • He/she did not want to get you in trouble.
  • He/she did not know the nature of the abuse at the time.

The Law Enforcement Interview The Minor

Law enforcement can interview the minor for details of the alleged act. Child psychologists usually handle these interviews. Detectives with special training and experience can also conduct these interviews. The interview can be videotaped or audio recorded. During the interview, the minor's parents could be invited or not.

A good interview will technically coax a minor to speak candidly without putting words in the mouth of the child or being too suggestive. There are some incidents, however, where a lousy interviewer could use leading questions to guide the minor into a particular confession.

Medical Examination And Forensic Analysis

Law enforcement could order a medical examination of the minor and a forensic analysis. The assessment could include examining the following:

  • The minor's clothes.
  • The minor's body.
  • The place where the act took place.

The Pretext Call

The law enforcement will have the minor make a staged phone call to you. The law enforcement will record the conversation and guide the minor on what to say. The purpose of the pretext call is to try and make you confess.

Search For Other Child Victims

The police could search out and try to identify all the minors exposed to your misconduct. The police will then track and arrest you. The police can also interrogate you, and if you deny the alleged lewd act, they can order you to submit to a polygraph examination.

Find A Criminal Defense Attorney Near Me

A conviction for lewd acts with a minor can have devastating consequences. It can taint your reputation, leading to stigmatization by society. You can also face extended jail time, pay hefty fines, and have to register as a sex offender. It is crucial to contact an experienced criminal defense attorney immediately when you learn that you are being investigated. At the California Criminal Lawyer Group, we have experienced attorneys who can help you create a convincing defense to fight your charges. Contact us at 559-712-8377 to speak to one of our Fresno attorneys.