Lewd Act with a Minor Child by Force or Fear

Penal Code 288b1

California Penal Code 288b1 PC defines and penalizes persons who commit a lewd act on a minor child under the age of 14, and to do so by the use of force or fear of bodily injury. This statute should be read in relation to Penal Code 288(a); but adding the element of force or fear of bodily injury in the course of committing lewd acts on a minor.

By legal definition, a lewd act with a minor under Penal Code 288 is committed by either touching a child for sexual purposes, or causing a child to touch him/herself or someone else for a sexual purpose.

Being charged does not automatically hold a person guilty, rather due process is followed by going through a trial. During the trial, the defendant may raise legal defenses to have the charges reduced or dismissed. Legal defenses available may vary on a case-to-case basis, depending on the facts of each case. Some of the more common legal defenses raised in offenses under this code are: the defendant did not use force or fear, the alleged victim was 14 years or older, and the defendant was stopped or arrested without probable cause.

Just like all other offenses under Penal Code 288, lewd act with a minor child by force or fear is charged as a felony under California law and is punishable by imprisonment in the California state prison for 5, 8, or 10 years.

Aside from imprisonment in state prison, having to register as a California sex offender during his lifetime is also one of the more serious consequences of being convicted for violation of Penal Code 288b1.

When is lewd acts with a minor child by use of force or fear committed?

As already mentioned above, Penal Code 288b1 PC is a law that makes it a crime for a person to:

1. commit a lewd act on a minor child under 14 years of age, and
2. to do so by the use of force or fear of immediate bodily injury.[1]

A “lewd act,” as contemplated in this Penal Code refers to the willful touching of a child for sexual purposes, or purposefully causing a child to touch him/herself or someone else for a sexual purpose.[2]

As can be gleaned from its legal definition, “lewd acts” is committed with the intent of arousing or gratifying the lust of either the perpetrator, the child, and/or another person.³

The determination as to whether a defendant uses “fear of bodily injury”, on the other hand, is based upon the facts of each case.

What are the Most Common Legal Defenses for Penal Code 288b1?

Raising legal defenses for charges of violation of Penal Code 288b1 can be challenging; however, it is not an entirely impossible task. In fact, a legal defense may reduce or even dismiss a charge.

Common legal defenses raised in offenses under this code are: the defendant did not use force or fear, the alleged victim was 14 years or older, and the defendant was stopped or arrested without probable cause.

“Absence of force or fear”

One of the essential elements to be convicted of the offense under Penal Code 288b1 is that the lewd act must be committed by use of force or fear. Proving these elements should be done in the same quantum of evidence as that of commission of lewd acts i.e. proof beyond reasonable doubt. Therefore, to show that the actions of the accused did not amount to force or fear may be used as a defense during trial.

“The alleged victim was 14 years or older”

Another essential element for crimes under Penal Code 288 is that the lewd act must be committed against a minor; for Penal Code 288b1, the minor must be under the age of 14 years. As such, the defendant may show that the alleged victim was 14 years or older. However, this defense does not necessarily result in outright acquittal as he may be found guilty of another crime.

“No Probable Cause Exists”

One of the constitutional rights afforded to the accused is found in the Fourth Amendment to the U.S. Constitution. This provision mandates that law enforcement authorities must have probable cause before they can detain or arrest a suspect of a crime.

The constitution further provides that a violation of this right can result in the exclusion of evidence obtained on the occasion of such arrest. Thus, if a person was stopped or arrested without any probable cause, then any evidence obtained following the improper stop/arrest could get excluded and rendered inadmissible in evidence. This exclusion could result in the dismissal or reduction in charges.

“Probable cause” refers to facts and circumstances that engender a well-founded belief that a crime has been committed and that the defendant is probably guilty thereof (based on all of the circumstances).

Penalties under Penal Code 288b1

A violation of Penal Code 288b1 is charged as a felony under California law. The crime is punishable by imprisonment in the California state prison for 5, 8, or 10 years.[3]

However, if warranted under the circumstances of the case, the Judge may award felony (or formal) probation instead of commitment to state prison.

What is more concerning when it comes to violation of Penal Code 288b1 is that conviction for the offense will result in registration as a California sex offender for the rest of his life.[4]

Related Crimes

Violation of Penal Code 288b1 has three related laws, also pertaining to lewd acts with a minor child by use of force or fear. These laws are:

1. lewd acts on a minor child with no force – PC 288;
2. lewd act with force by caretaker of a dependent person – PC 288b2, and
3. lewd act with a minor child, bodily harm inflicted – PC 288i.

a. Lewd acts on a minor child with no force – PC 288

Penal Code 288 PC is the California statute that defines the crime of “lewd acts with a minor child.” For charges under Penal Code 288a to prosper, the prosecution must establish the following elements beyond reasonable doubt:

1. the defendant willfully committed a lewd or lascivious act,
2. defendant committed the act on a child under the age of 14, and
3. touching was done with the intent of arousing the sexual desires of himself or the child or of another person.

Penal Code 288 and Penal Code 288b1 are similar in that both acts involve lewd acts with a minor. However, a defendant will be charged under PC 288 when he did not use any force when committing the lewd act. On the other hand, if force was used, then he would be charged under PC 288b1.

A violation of PC 288 is charged as a felony and is punishable by imprisonment in the state prison for 3, 6, or 8 years.[5]

Aside from imprisonment, a person adjudged guilty of this offense must also register as a California sex offender for a minimum period of 20 years.

b. Lewd act with force by caretaker of a dependent person – PC 288b2

Another penal code involving lewd acts with a minor is found in Penal Code 288b2. The peculiar element under this code is that the offender is a caretaker and that the victim is the defendant of that caretaker. Thus, a careful reading of the statute will reveal the following elements of the crime:

1. defendants is the caretaker of a dependent person (e.g., a physically impaired person aged 65 or older), and
2. he commits a lewd act on that person.

A violation of PC 288b2 is charged as a felony and is punishable by imprisonment in the state prison for 5, 8 or 10 years.

Just like the other offenses under Penal Code 288, a person found guilty under this code section must also register as a California sex offender in addition to state imprisonment or formal probation, whichever is applicable. It should also be emphasized that for this particular offense, mandatory registration as a sex offender shall be for the rest of his life.

c. Lewd act with a minor child, bodily harm inflicted – PC 288i

California Penal Code 288i is the law that governs when the commission of lewd acts with a minor is attended by bodily harm.

Elements of the crime under Penal Code 288i are as follows:

1. commit a lewd act on a minor child under the age of 14, and
2. inflict bodily harm on the victim in doing so.[6]

Violation of this penal code is charged as a felony and is punishable by imprisonment in the California state prison for life with the possibility of parole.

Aside from state imprisonment, a person found guilty of this offense shall register as a California sex offender for the rest of his life.

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