lewd acts with a minor 288 pc – san pedro criminal defense attorney
Lewd acts with a minor, Cal. 288 PC
Lewd acts with a minor is one of California’s many penal codes which protect children. 288 PC spells out the elements of this offense as well as the criminal penalties if a defendant is convicted of this crime.
ELEMENTS OF THE CRIME OF LEWD ACTS WITH A MINOR
To obtain a conviction under 288 PC, the prosecution must successfully prove beyond a reasonable doubt that the defendant:
- Willfully touched any part of a child’s body or caused a child to touch their own body, the defendant’s body, or another person’s body; AND
- Intended to arouse, gratify, or appeal to the passion, lust, or sexual desires of the child or the defendant.
Willfully means on purpose or deliberately. This offense does not require any intent to break a law, gain any type of advantage, or harm a minor. Even if the perpetrator genuinely believes the act is lawful and/or harmless, that belief has no bearing on this offense.
For the purposes of this statute, touch can refer to contact with a child’s bare skin OR through clothing. It is important to note that the touching does not need to be of a child’s genitalia or other intimate areas. The core concept of this statute is that the touching is intended to cause the defendant and/or child to become sexually aroused.
For example, if an adult who has a foot fetish massages a child’s feet with the intention of becoming aroused, they may be found guilty of lewd acts with a child, even though the child is not distressed by the touching and is unaware of its significance.
Finally, intending to arouse is only concerned with intention, not effect. Neither the defendant nor the child actually has to become aroused to fulfill this element. But of the three elements, this is the most difficult to prove, especially if the touch was not overtly sexual in nature.
CRIMINAL PENALTIES FOR COMMITTING LEWD ACTS WITH A MINOR
Criminal penalties vary depending on the child’s age at the time of the offense.
If the child is under 14 years of age at the time of the crime, 288 PC is a felony punishable by any or all of:
- Up to one year in county jail AND probation; OR
- From three to six years in state prison.
If force, threats, violence, or duress were used against the child, the prison sentence increases to between five and ten years.
Additionally, if the defendant has any prior related conviction, they could be prosecuted under the state’s habitual sexual offender statute, and the prison sentence increased to 25 years to life. For victims under 14 years of age, lewd acts are considered a violent and serious felony and are a strike under California’s “three strikes” law.
If the child is 14 or 15 years of age at the time of the crime AND the defendant is at least 10 years older than the victim, the offense is a wobbler that will be prosecuted as either a misdemeanor or a felony depending on the facts, circumstances, and other details of the case, along with the defendant’s prior criminal record, if any.
For a misdemeanor conviction, the defendant may receive up to one year in county jail and probation. For a felony conviction, the defendant can be sentenced to any or all of:
- Up to one year in county jail AND probation; OR
- From three to six years in state prison.
Finally, if the child was 16 or 17 years of age, the case would be prosecuted as statutory rape (unlawful intercourse with a minor, 261.5 PC) or sexual battery (243.4 PC). Statutory rape occurs when a person engages in sexual intercourse with a minor under 18 years of age, and sexual battery occurs when a person touches the intimate part of another person for the purpose of sexual arousal, gratification, or abuse.
No matter the age of the victim, a 288 PC conviction may also be punishable by any or all of the following sanctions:
- Lifetime registration under 290 PC as a sex offender.
- Payment for the victim’s psychological or medical treatment or other restitution.
- Additional and consecutive five-year prison sentences if the victim suffered great bodily injury due to the defendant’s use of force or violence during the crime.
Finally, every independent occurrence of lewd acts on a minor is a separate offense that can be charged and punished independently. In other words, if the defendant is accused of violating the minor three different times over a period of 10 months, they could be charged with three counts of the offense. In such a case, incarceration can be ordered to run concurrently or consecutively.
RELATED OFFENSES
There are several other offenses which are frequently charged in conjunction with a 288 PC offense, including:
- 288.2 PC – Sending harmful matter to seduce a minor
- 288.3 PC – Contacting a minor to commit a felony
- 288.4 PC – Arranging a meeting with a child for lewd purposes
- 288.5 PC – Continuous sexual abuse of a child
- 288.7 PC – Sex with a child under 10
- 288(a) PC – Oral copulation with a minor
- 311 PC – Child pornography
- 207 PC – Kidnapping
- 647.6 PC – Annoying or molesting a child under 18
LEGAL DEFENSES TO 288 PC CHARGES
An allegation of lewd acts with a minor is a serious matter with potentially devastating penalties. Anyone so accused should seek the services of a qualified and capable criminal defense attorney immediately. Some of the possible legal defenses an attorney may pursue include:
- Mistaken identity – the child is blaming the wrong person.
- A third party is coaching the child through manipulation and/or suggestion.
- The accuser is lying.
- The physical contact was accidental.
- There was no intent to cause any sexual arousal.
Do you have concerns about allegations of lewd acts with a minor or a related offense? Contact San Pedro criminal defense attorney Don Hammond. Mr. Hammond represents clients in San Pedro and the South Bay area of Los Angeles, including Long Beach, Torrance, the Beach Cities, Carson, Gardena, Inglewood, Lomita, Wilmington, and surrounding communities.
