Protecting children from sexual misconduct is a top priority in California, with Penal Code 288 strictly prohibiting lewd acts involving minors. This law applies to any lewd or lascivious acts done on a child below the age of 14 years or a child aged 14 to 15 years if the accused is at least ten years older than the child. Violating PC 288 could result in a lengthy jail term, registration as a sex offender and heavy fines. Charges under this statute can change your life significantly. Beyond the legal consequences, the damage to your reputation and personal relationships can be long-lasting. 

If you are being charged under PC 288, time is of the essence. You should engage a criminal defense attorney immediately. An experienced criminal defense lawyer can review the facts of your case, challenge the evidence, and work to reduce or dismiss the charges. That is why, with the proper legal counsel, you have a better chance of protecting your rights and minimizing the impact of these serious allegations. If you are facing sex crime charges involving minors in the Monterey area, get in touch with us at the Monterey Criminal Attorney for professional criminal defense services.

What Constitutes a Lewd Act with a Minor in California?

According to Penal Code 288, lewd or lascivious acts with a child involve the intentional touching of the child’s body for sexual arousal, either for the offender or the child. These acts include touching any part of the child’s body sexually, even if this is done indirectly. For children under 14, this is always a felony. Even if the child is 14 or 15 years old and you are in a position that makes you at least ten years older than the child, then you would be criminally liable. The law focuses on intent, meaning any act aimed at sexual gratification qualifies, regardless of where contact occurs.

Talking to the child forcefully or threatening them while fondling them, making them sit on your lap, or touching their body inappropriately aggravates the crime, and it becomes a violation of Penal Code 288(b). If you use force, violence, or threats, then the legal repercussions worsen.

To convict you of lewd acts with a minor under Penal Code 288, the government must prove the following:

  • Intent for sexual gratification — You acted to get sexual gratification or satisfy your sexual desire or that of the child.
  • Purposeful action — You did not commit the acts by mistake or accident.
  • Child’s age — The child was under 14. If the child was between 14 and 15, you had to be at least ten years older than the victim.
  • Opportunity to be with the child — Although not required, evidence showing you had opportunities to be alone with the child can strengthen the case.

 Let us take a closer look at each of them in detail.

Intent for Sexual Gratification

In the cases of child sexual abuse, the prosecutors should prove that you had the intention of deriving sexual satisfaction for yourself or the child. The jury relies on circumstantial evidence because intent is generally difficult to establish. Several factors can help prove intent. They include the following:

  • Nature of the act — Contacting the intimate regions may cause the jury to think that you had a sexual reason to attack.
  • Relationship with the child — If you were in a position where you had any form of influence over this person, it could mean that you were planning to use that influence to take advantage of this person.
  • Location — Choosing a private or secluded place may suggest that you want to do something immoral out of sight of other people.
  • Prior acts — Past behavior or allegations of a similar nature can help to make your case that the intent was sexual.
  • Statements or actions — Any comments or gestures that you made before or after the event could suggest sexual desires. It could also imply an acknowledgment of inappropriate behavior, which can indicate intent.

Lewd acts are defined as an attempt to satisfy one’s sexual desires, and more often than not, the law under Penal Code 288 is based on your intent. Although the statute applies to such situations where you may have intended to please the child, what is of most importance here is your intention to get sexual satisfaction through the act.

You Acted Willfully

Acting willfully means you acted purposefully. To act willfully implies that you act deliberately, know what you are doing, and choose to do it with full knowledge of the consequences. In legal contexts, it means you know the consequences of your actions and continue to act even if they are potentially damaging or unlawful. Juries rely on a series of actions that point to willful action or deliberateness.

On one hand, prosecutors can present evidence showing that you touched the child’s body. Since this is a child, you do not have to touch his/her private parts for it to constitute a crime. Any form of inappropriate touching of a child's body, including his/her thighs, kneck, or other body parts, is a crime since the child cannot consent to these actions. Doing so would also show deliberateness.

On one hand, prosecutors can present evidence showing that you touched the child’s body. Since this is a child, you do not have to touch his/her private parts for it to constitute a crime. Any form of inappropriate touching of a child's body, including his/her thighs, kneck, or other body parts, is a crime since the child cannot consent to these actions. Doing so would also show deliberateness.

Some offenders use the child’s arms to touch the child’s body or his/her own body. In other situations, the touching could occur over the victim’s clothes. All these amount to direct touching, which shows deliberateness. Some offenders argue that the child touched them or himself/herself willingly. However, in this situation, the court deems it a use of force or coercion since the child in this situation might have thought he/she did not have a choice but to comply. Remember, a minor cannot legally consent.

With all the above actions, it is clear that these actions were not accidental or unintentional.

Prosecution for violating Penal Code 288(b)(1) aims at cases where you engage in a lewd act with a child and use force, menace, duress, or threat of imminent and unlawful physical violence to compel the child. These forceful or violent acts worsen the crime, and thus, the punishment is severe.

To secure a conviction, the prosecutor must prove you used any of the following:

  • Force — You overpowered the child or coerced him/her into performing the lewd act through the use of physical force. This could involve pinning down the minor, choking them, or physically forcing them into submission to perform the act, as pointed out earlier.
  • Menace — You threatened or acted in a particular manner likely to place the child in fear or any other person. For instance, stating that you will harm the child if he/she does not follow the instructions can establish a menace.
  • Duress — You abused the child by using psychological tactics on him/her. This can be in the form of physical force, where you could threaten to harm the child, or through authority, where you force the child to do something against his/her wish by using an influential position that the child cannot resist.
  • Fear of immediate and unlawful bodily injury — You manipulated circumstances to ensure the child was threatened with physical harm or thought that another person would be attacked if he/she failed to follow your instructions. The fear can be inferred from the circumstances, even if not explicitly stated. This makes an act that injures the child an aggravating factor in Penal Code 288 cases, resulting in harsher penalties.

In these situations, the prosecutor must prove that your use of force, threats, or fear was a contributing factor to forcing the minor into submission or participation in the lewd act. You do not have to have physically injured the child. All that is required is to compel the minor’s obedience through force, coercion, or fear.

The Victim Was a Minor Below 14 or 15 Years

The child's age is a crucial factor in Penal Code 288 cases. If the victim is under 14 years of age, any lewd or lascivious act you commit on the victim, with the intent to satisfy the sexual desires, is considered a serious offense. In these cases, the prosecutor will focus on showing that you acted deliberately and for sexual desire. They do not have to prove that you used force or coercion, only that you made improper contact with the child below 14 years of age.

However, the law applies to the victims between 14 and 15 years of age, but with an extra condition. For the act to be considered a violation, you must be at least ten years older than the minor. Even though they could engage in these acts, the law appreciates that the age gap creates a significant power imbalance. The focus remains on your intent.

Prosecutors must present clear evidence of the victim's age, as this determines the severity of the charges. While PC 288 focuses on victims who are below 14 years and those who are between 14 and 15 years, lewd acts with a child law in California are unlawful regardless of the age of the victim. Though the victim can be older than these age groups, engaging in these acts with anyone under the age of 18 years is a crime. You could be arrested for violating:

  • Penal Code 243.4 for sexual battery.
  • Penal Code 261. 5 for unlawful sexual intercourse or
  • Penal Code 647. 6 for annoying or molesting children.

Access to the Child

In Penal Code 288 cases, the courts pay attention to the extent to which the offender had contact with the minor. This factor is important because the proximity to the child meant that the offender had many chances of perpetrating lewd practices. Contacts often indicate that the offender had many opportunities to act improperly, creating the context for the misconduct.

Regularity of contact usually suggests that the offender was in a position of trust or power over the child. This is especially important in understanding the type of crime committed since it may result from the offender taking advantage of the position held. Thus, this exploitation proves that the actions were not accidental but part of a plan.

Furthermore, the courts determine how often contact affects the victim from a psychological point of view. Interactions can also increase the child’s helplessness and fear, especially when they are frequent.

The minor having regular contact with you also becomes an aggravating factor in Penal Code 288. This implies that the accused has more time to molest the minor. Nevertheless, it does not mean you have no criminal responsibility if you are a stranger to the child.

Lewd acts with a minor are prohibited, no matter the nature of your relationship with the minor. The emphasis is on the kind of acts and your purpose for the acts in question. And even if you did not have any prior contact or interaction with the child, touching their private parts is still a very grave offense.

Legal Consequences of Lewd Acts with a Minor

Under Penal Code 288, punishment varies based on the following:

  • The age of the child.
  • Whether you applied force or threats.
  • Your criminal history.

Here is a look at the varying penalties.

When You Commit Lascivious Acts Without Using Coercive Tactics

You commit a felony when you engage in lewd acts on a child under 14 years of age without force or using any coercive tactics. The potential penalties for this violation include:

  • Formal probation instead of imprisonment.
  • Imprisonment for 3, 6, or 8 years.
  • A fine of up to $10,000.

Under Penal Code 288(b)(1), if you commit a lewd act against a child under 14 using: Under Penal Code 288(b)(1), if you commit a lewd act against a child under 14 using:

  • Force.
  • Violence.
  • Duress.
  • Threats.

 The potential penalties include:

  • Criminal imprisonment in a state prison for 5, 8, or 10 years without the possibility of parole.
  • A fine of not more than $10,000 can be imposed.

Lewd Acts that Cause the Child to Sustain Injuries

Your penalties could significantly increase for lewd and lascivious acts if you harm the child. Prosecutors may charge you under any of these statutes:

  • Penal Code 667. 61(d)(7) — Under the “One Strike” law, you can receive 25 years to life for assaulting a victim under 14.
  • Penal Code 288(i) — You could be jailed for life if you assaulted a victim who was below fourteen years of age.
  • Penal Code 12022.8 — Under this section, you may also receive a 5-year sentencing enhancement if you inflict serious physical injury.

If The Child Was 14 or 15 Years Old at The Time of The Crime

According to Penal Code 288(c)(1), if you engage in a lewd act with a child of the age of 14 or 15 and you were at the time at least ten years older than the child, you would have committed a wobbler offense. Prosecutors could, therefore, charge you with misdemeanor or felony consequences.

For this offense, you could face:

  • Up to one year imprisonment in county jail if convicted of a misdemeanor violation or
  • A prison sentence of one year, two years, or three years if convicted of a felony.

Additional Consequences of Engaging in Lascivious Acts With a Minor

  1. Registration as a Sex Offender

If convicted for the first time under Penal Code 288(a), which is lewd acts on a child without force or fear, you have to register as a Tier 2 sex offender for 20 years.

If you are convicted for the second time or more under PC 288(a) or convicted under PC 288(b)(1) that involves lewd acts on a child done with force or with fear, you have to register as a Tier 3 sex offender for the rest of your life.

The court cannot alter your registration requirement. However, a competent sex crimes attorney could secure a plea deal to a lesser charge, specifically Penal Code 242, for simple battery. This offense does not impose a registration requirement.

 Noncompliance with these registration requirements results in other criminal charges.

  1. A Strike on Your Record

Committing a lewd or lascivious act with a minor qualifies as a serious felony under the state's Three Strikes Law. These offenses are called ‘strike’ crimes under this law and significantly impact your criminal history and sentencing.

In many cases, subsequent felony convictions increase the number of strikes on your record. Any strike on your record results in harsher penalties. A second strike doubles the prison term if convicted of a new felony, while the third strike results in a 25-year to life term for the new felony conviction.

  1. Convictions After the Current Charge of Lascivious Acts with Minors

If you are convicted of a lewd act with a minor and commit another similar offense, you trigger Penal Code 667. 71, which means you will be classified as a habitual sex offender. This classification results in a minimum of twenty-five years to life in prison.

Common Defenses Used in Cases Involving Lewd Acts With A Minor

Although penalties for lewd acts with minors are serious, you have a right to defend yourself. Your attorney can use several strategies to challenge the allegations effectively, including:

You Were Falsely Accused

The child might have made false accusations, which could be the core of the charges against you. When emotions are high, people do not doubt the child's words or question the information that the child provides. However, certain factors can put the credibility of the allegations into question. For example, if the child has a history of lying or is deceitful, the allegations are likely to be suspicious.

Further, if there is evidence that a parent or a guardian urged the child to tell a lie or coached the child to make false statements in the trial, it would prove disastrous for the prosecution. This evidence would imply that the accusations are more of a product of ulterior motives than factual events. It would underscore that the claims are not grounded in truth but rather in extraneous factors to fabricate a case. This information could significantly damage the prosecution’s case and strengthen your defense. It could lead to the cases being dismissed.

It Was a Case of Mistaken Identity  

The pressure to identify the perpetrator is so high that the child’s emotional state can be affected, resulting in mistakes. The trauma of the encounter may overwhelm the child, and thus, they cannot be in a position to recognize or even identify the offender. Due to the high-stress levels associated with these incidents, they might confuse you with the perpetrator.

Your defense attorney could highlight this issue when asserting that this was a case of mistaken identity. They will also explain how the child’s emotions and the conditions of the event may have influenced the results. If the prosecution fails to present strong, concrete evidence linking you to the crime, tangible evidence that can directly incriminate you of the crime, your lawyer can use this loophole to question the credibility of the child’s identification. By pointing at these possible discrepancies, your attorney can build a better and more effective defense for your case and help secure a favorable outcome.

Find a Monterey Sex Crimes Defense Attorney Near Me

There is no doubt that charges of lewd acts with a child are severe and can have life-altering consequences for both the child and the accused. However, you have the right to defend yourself against these allegations. An experienced criminal defense attorney will handle the legal complexities, help you understand the charges leveled against you, and develop an effective defense strategy tailored to your situation.

If you are in the Monterey area and facing this sex crime offense, contact the Monterey Criminal Attorney at 831-574-1791. We will give you the legal advice you require to safeguard your rights as we work on your defense.