Lewd and Lascivious Acts involving a Minor

California Penal Code 288

California Penal Code 288 defines and penalizes lewd and lascivious acts involving a child. PC 288 is a “wobbler” offense, which means that it may be charged as a misdemeanor or a felony depending upon their case circumstance and their prior criminal history. However, if convicted of a sex crime under this statute, you can expect a lifetime inclusion on California’s sex offenders registry list.

The statute reads that:

288. (a) Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

(b) (1) A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(c) (1) A person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.

(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.

A “lewd act” is broadly defined as either touching a child for sexual purposes or Causing a child to touch him/herself or someone else for a sexual purpose.[1]

It is also important to note that this section also makes it a crime for a caretaker to commit a lewd act by using force or threat against a dependent person. This includes dependent elders and people with disabilities.

Considering the seriousness of the offense and penalties involved under Penal Code 288, you will need a lawyer to assist you in your trial. As such, you may raise various available legal defenses to charges of lewd and lascivious acts against a child in California as applicable to you. Some of the most common defenses include:

1. Touching was not intentional, as it was only accidental,
2. Lack of intent to cause sexual arousal,
3. The child is blaming the wrong person (“perpetrator substitution”), or
4. The accuser is lying or mistaken as the accuser may be motivated by ill-will or vengeance towards the defendant.

PC 288- when committed?

Anyone who knowingly commits lewd acts with a minor under 14 years, with the purpose of sexually arousing himself can be found guilty of violating Penal Code 288.

In order for the crime of lewd and lascivious acts with a child under 14 to prosper, the state’s prosecutors have to prove the following elements:

1. That you have intentionally touched a child’s body or body part or persuaded a child to do so, even if they consented.
2. The touching was done for the purpose of gratifying or arousing the sexual desires of yourself or the child in question.

The offense usually involves accusations that the child was touched or fondled on a sexual organ, or that there is an overt act of child molestation which took place.

Nonetheless, you can still be charged with lewd acts even if the touching was not on a sexual organ, the touching was done over the child’s clothes (rather than on the bare skin), or the child was the one doing the touching (if at the defendant’s urging).

It is important that the defendant committed the touching for the purpose of arousing him- or herself, the child, or another person. Nonetheless, actual arousal is not required to secure a conviction for this offense. The crux of the offense is the intent for which the touching was done.

“willfully” as an element of Penal Code 288 PC

An essential element of the crime under PC 288 is that it must be done willfully which means that he or she does it on purpose. It is not necessary that the person intends to break a law, harm another person, or gain any advantage.

What is not covered under this statute is the accidental contact with the child – even of a sexual organ —thus, does not constitute a lewd act under Penal Code 288.[2]

“touching” penalized under Penal Code 288 PC

The defendant must “touch” any part of a child’s body or cause the child to touch someone to be considered in violation of this section. Moreover, the touching was done on purpose and intended to cause arousal or to satisfy a sexual desire; although actual arousal is not required.

However, that the touching does not need to be on the skin or on a sexual organ. It can be on any body part and made either on the bare skin or through the clothing.[3]

Penalties for PC 288

Penalties for child molestation, being a wobbler, will depend on a variety of factors, including the age of the child, whether the lewd act was accomplished by force, violence, duress, or threats, whether there was a pattern of lewd acts, if the child is 14 or 15, and the age of the defendant. However, it should be noted that convictions under this provision will necessarily entail registration as a sex offender whether charged as a misdemeanor or felony offense.

A. Penal Code 288(a) - Child under 14 – no force or threat used

Violation of Penal Code 288 will always be classified as a felony offense when the child involved was under 14 years old at the time of a lewd act. This is especially true when no force is used, then the violation is appropriately charged under Penal Code 288(a).

Punishment for a lewd act under PC 288(a) can include imprisonment of 3, 6, or 8 years in California state prison, and a fine of up to $10,000.

In some instances, the judge may grant probation and up to one year in county jail. Notwithstanding the grant of probation, violation of Penal Code 288(a) is still considered a sex offense warranting the additional penalty of registration as a sex offender. Some PC 288(a) offenders may be eligible for California formal (felony) probation instead of prison time. The court will consider various factors related to both the circumstances of the crime and the defendant’s criminal history (if any).

B. Penal Code 288(b)(1) - Lewd act involving force or threat against a child under 14

This specific offense under Penal Code 288 applied when a lewd act on a child is accomplished by using force, violence, duress, menace, or threats that place the child in fear of immediate and unlawful bodily injury to the child or someone else subjects the defendant to greater penalties.

Legal definition

1. “Force” under 288(b)(1)

The force required for a Penal Code 288(b)(1) conviction must be substantially different from or greater than the wrongful touching itself.

2. “Fear” under 288(b)(1)

There is an element of fear when the child is actually and reasonably afraid, or the child is unreasonably afraid and the defendant knows and takes advantage of it.

3. “Duress” under 288(b)(1)

For purposes of California Penal Code 288(b)(1), “duress” is defined as: “The use of a direct or implied threat of force, violence, danger, hardship, or retribution [payback or revenge] sufficient to cause a reasonable person to do, or submit to, something that he or she would not otherwise do or submit to.”[4]

4. “Menace” under 288(b)(1)

“Menace” contemplated under 288(b)(1) under California jurisdiction is defined as a threat, statement, or act showing an intent to injure someone.

More importantly, defendants convicted under PC 288(b)(1) are not eligible for probation. The court must sentence the defendant to prison.

C. Penal Code 288(i) - Lewd act resulting in bodily harm to victim under 14

Penalties for violation of 288 are substantially enhanced if the commission thereof is attended by infliction of bodily harm on a victim under 14. In such cases, life sentence can be imposed upon conviction.

“Bodily harm” and “great bodily injury”, as contemplated under this section, are defined as any substantial physical injury.[5] As used in this section, “great bodily injury” means a significant or substantial physical injury.”

D. Penal Code 288(c)(1) - Lewd act involving a child of 14 or 15 years of age

Commission of lewd acts against a 14 or 15-year-old child is punishable under this code when the defendant was at least 10 years older at the time.

This type of offense under Penal Code 288 is “wobbler” offense in California laws which means that the prosecutors can charge it as either a misdemeanor or a felony depending on the facts of the case, and the defendant’s prior criminal history (if any).

If punished as a misdemeanor under PC 288(c)(1), the penalty imposed may be up to one (1) year in county jail.[6] However, even as a misdemeanor, a violation of Penal Code 288 requires the defendant to register as a California sex offender.[7]

On the other hand, if punished as a felony penalties imposed may be 16 months, 2 years or 3 years in state prison, or felony probation, which can include up to one year in county jail.[8]

E. Lewd acts committed against a minor who was 16 or 17

Penal Code 288 does not apply when the minor was 16 or 17 years old at the time of a lewd act. Rather prosecution will be made under Penal Code 261.5 on California’s statutory rape law or Penal Code 243.4(a) on California’s sexual battery law.

F. Second or subsequent Penal Code 288 conviction

A defendant with a prior sex crime conviction shall be considered a habitual sex offender and could be prosecuted under Penal Code 667.71(b), in addition to being prosecuted under PC 288. As a consequence thereof, a defendant may be sentenced to 25 years to life in state prison.[9]

Additional consequences of a Penal Code 288 conviction

Aside from being sentenced to jail and fine, conviction under Penal Code 288 will also carry with it accessory penalties such as:

1. Loss of a professional license (such as a license to practice law or medicine),¹⁴
2. Loss of the right to own a firearm, and/or
3. Immigration consequences, including possible removal (deportation) from, or denial of entry (inadmissibility) into, the United States.[10]
4. Potential victim restitution in the form of payment for the victim’s medical or psychological treatment.[11]

California sex offender registration

One of the more serious consequences of a conviction under Penal Code 288 is the requirement to register as a California sex offender. Moreover, what is very concerning is that any conviction under this section may result in lifetime registration as a sex offender.[12]

On January 1, 2021, however, the Tier-registration system was established wherein sex offenders will be divided into three tiers, based on the severity of their offense. A first-time offender convicted under this section will be placed in Tier 2. Tier 2 sex offenders will be required to register as a sex offender for at least 20 years.[13]

However, in cases of second or subsequent conviction under PC 288(a),[14] or any conviction under PC 288(b)(i)[15] offender will be classified as Tier 3 who will have to register as a sex offender during his lifetime.

Offenders convicted of lewd acts under Penal Code 288 must register on the “Megan’s Law” California sex offender registry.[16]

A lewd act as a “strike offense”

Under California’s “One Strike” law, a defendant who personally inflicts bodily harm on a PC 288 victim must be sentenced to 25 years to life.[17] Moreover, under California’s “Three Strikes” law, a defendant with a prior strike conviction will face an enhanced sentence for any Penal Code 288 conviction.[18]

Statute of limitations for lewd acts on a child

Statute of limitations refers to the period of limitation for bringing of certain kinds of legal action. For lewd acts committed after January 1, 2015 (or acts for which the statute of limitations had not yet run as of that date), Penal Code 801.1 allows prosecution for a felony violation of Penal Code 288 to be commenced at any time before the victim’s 40th birthday.[19] Therefore, considering that the victim was only minor at the time of the commission of the offense, the criminal action can be brought even years thereafter.

Legal Defenses applicable to violations of Penal Code 288

Defenses available may vary on a case-to-case basis. Fortunately, there are various defenses available against Penal Code 288 charges. It should be emphasized, however, is that consent of a child victim is NOT a defense to charges of lewd acts with a minor since a minor cannot consent to an unlawful sexual act under California laws.[20]

Common defenses to persons charged of this offense are as follows:

1. The child is lying

Veracity of the child’s testimony is essential to secure a conviction beyond reasonable doubt. Thus, the prosecution will definitely rely on the child’s credibility in pursuing the case.

In order to ascertain the truthfulness of the child’s account of events complained of, we may subpoena the accuser’s school, counseling, and medical records, emails, and social networking accounts; interview the child’s family, friends, schoolmates, and online contacts, and conduct a thorough background check on the accuser and any alleged witnesses.

2. The accuser is mistaken

By reason of the trauma which the child may have experienced, it could be possible that a child was touched inappropriately but is confused about the identity of the perpetrator. In such cases, it is important to look for facts that could undermine a child’s identification of the defendant as the perpetrator.

3. The touching was accidental or there was no intent to arouse

As already discussed above, willfulness and intent to arouse oneself or the child are essential in order that one may be charged and convicted under this Penal Code. Therefore, if the contact was accidental, the defendant is not guilty.

The statute only prohibits contact made for the purpose of sexually arousing the perpetrator or the child. If the defendant didn’t intend to sexually arouse or gratify him or herself of the minor it is not child molestation. However, actual arousal is not a requirement.

4. The minor doesn’t fit the age criteria for the crime

Offenses under California Penal Code 288 may be broadly classified into two types, namely: engaging in a lewd act with a child under 14 and engaging in a lewd act with a minor who is 14 or 15 and who is at least ten years younger than the defendant.

Therefore, a defendant cannot be held liable under PC 288 in cases when the minor is 14 or 15 but is less than ten years younger than the defendant, or when the minor is older than 15.

This does not mean, however, that the defendant is free from any culpability for his acts as he may still be charged with another California Penal Code Section, such as Penal Code 261, “statutory rape,” or Penal Code 243.4, “sexual battery.”

5. The defendant was the victim of an illegal search or other police misconduct

Prosecution of child sex offenses in California are aggressively pursued by authorities. However, this should be done within the legal bounds. When the evidence was obtained by unlawful means i.e. in violation of the defendant’s constitutional rights, the same may be excluded and rendered inadmissible in evidence being a fruit of the poisonous tree.

Violation of the defendant’s rights may include an illegal search and seizure, Police misconduct such as false testimony or planted evidence, Coerced confession, or Entrapment.

Offenses related to Penal Code 288

A variety of California sex offenses are frequently charged along with Penal Code 288 or are lesser included offenses. Some of the crimes most commonly charged with PC 288 include:

1. Penal Code 288.2 - Sending Harmful Matter to Seduce a Minor

Penal Code 288.2 PC defines and penalizes the act of sending, distributing or exhibiting harmful or obscene material to a person under the age of 18 when the intent is to sexually arouse and seduce the minor. The offense is a wobbler that can be charged as a misdemeanor or a felony. A conviction triggers a lifetime duty to register as a tier-three sex offender. The law excludes parents or others who act for legitimate scientific or sex education purposes.

2. Penal Code 288.3 - Contacting a Minor to Commit a Felony

Penal Code 288.3 prohibits a person from contacting or communicating with a minor under the age of 18, having reason to know that the person is a minor, with the intent to commit a sex crime or other serious felony involving that minor. Penal Code 288.3 is a felony and punishment is up to 3 years of California state prison. Moreover, a conviction may result in lifetime registration as a sex offender.

3. Penal Code 288.4 - Arranging a Meeting with a Child for Lewd Purposes

Penal Code 288.4 defines and penalizes the act of arranging a meeting with a minor under the age of 18 with the intent to engage in sexual conduct at the meeting. The offense can be charged as a misdemeanor or a felony and carries up to 4 years in jail or prison and registration as a sex offender. Even the mere act of arranging a meeting with a minor is an offense; although classified as a wobbler, which means it can be a misdemeanor or a felony punishable by up to 3 years in California state prison. But, if the suspect actually went to the arranged meeting place, the offense becomes a straight felony and the penalty is up to 4 years state prison.

4. Penal Code 288.5 PC - Continuous Sexual Abuse of a Child

An offense under Penal Code 288.5 involves engaging in three or more sex acts of lewd or lascivious conduct over a period of three months or longer, with a child under 14 years of age.

A prosecutor must prove the following to convict a person of continuous sexual abuse of a child:

1. the defendant lived in the same home with or had recurring access to a minor child,
2. the accused engaged in three or more specific acts of sexual abuse with the child,
3. three or more months passed between the first and last acts,[21] and
4. the child was under the age of 14 years at the time of the acts.[22]

A person convicted of Penal Code 288.5 PC (continuous sexual abuse of a child) may be punished with 6 to 16 years of state prison.

5. Penal Code 288.7 - Sex with a Child Under 10

One of the more serious sex offenses is defined and penalized under Penal Code 288.7 which makes it a crime for an adult to engage in a sexual act with a child under 10 years of age. These acts include sexual intercourse, sodomy, oral copulation, and sexual penetration

Violation of PC 288.7 is a felony, punishable 25 years to life in the state prison (Penal Code 288.7(a)) - For sexual intercourse or sodomy, or 15 years to life in state prison (Penal Code 288.7(b)- For oral copulation.

6. Penal Code 287 - Oral Copulation with a Minor

Penal Code 287 PC of California’s law penalizes acts involving oral copulation of a minor child. If the victim is under 14, PC 287(c)(1) is always a felony. Punishment for a felony violation of PC287 ranges from three years to twelve years in prison.

7. Penal Code 311 - Child Pornography

Penal Code 311 PC contains California’s child pornography law, prohibiting possession or distribution of materials showing minors engaging in sexual activity, or displaying a minor’s genitals.

8. Penal Code 243.4 PC - Sexual Battery

“Sexual battery” contemplated under Penal Code 243.4 prohibits touching the intimate part of another for sexual arousal, gratification, or abuse. A “sexual battery” charge under Penal Code 243.4 may be filed as either a misdemeanor or as a felony.

While this may sound similar to Penal Code 288 “lewd acts with a minor”, the distinction lies in the fact that “sexual battery” makes no mention of the victim’s age. Hence, this may be charged when the minor is 16 or 17, or the minor is 14 or 15 but less than ten years younger than the defendant.

A misdemeanor conviction under this Penal Code may result in a duty to register as a sex offender for at least 10 years, being classified as a tier one offense. On the other hand, felony sexual battery usually carries a duty to register as a sex offender for life in California.

9. Penal Code 207 PC - Kidnapping

Under Penal Code 207 PC – California’s “kidnapping” law it is crime if you persuade, entice, or lure a minor to accompany you to a location so that you can engage in a “lewd act” with him or her.

If found guilty under this provision, the penalty imposed may be a five, eight, or eleven-year state prison sentence.

10. Penal Code 647.6 PC - Annoying or Molesting a Child Under 18

The crime of “annoying” or “molesting” a child, Penal Code 647 PC, is committed when you engage in conduct likely to disturb or irritate a child under 18 years of age, and your conduct is motivated by a sexual interest in a specific child or in children generally.

Unlike Penal Code 288, Penal Code 647.6 does not require touching of any part of a child’s body to be convicted of the offense. The more common ways of committing this offense are by using inappropriate language or engaging in otherwise innocent conduct — such as masturbating — if your intent is that your actions be observed by a child or children.

A first offense of Penal Code 647.6 PC (annoying or molesting a child) is generally a misdemeanor. Repeat offenses, and offenses committed by those with prior felony convictions for sex crimes involving children, are felonies.

11. Penal Code 269 - Aggravated Sexual Assault of a Child

Aggravated Sexual Assault of a child (as per Penal Code 269 PC) is committed when the following elements concur:

1. one commits a “certain crime” with a child (as listed in the section below),
2. the child is under the age of 14, and
3. the child is 7 or more years younger than the defendant.

The “certain crime” listed within Penal Code 269 includes Rape, Rape or sexual penetration, in concert, Sodomy, Oral copulation, and Sexual penetration.

Aggravated sexual assault of a child is punishable by imprisonment in a California state prison for a term of 15 years to life. Also, a person found guilty of this crime must register as a California sex offender for the rest of his or her life.

Civil lawsuits by victims of lewd acts

Aside from filing a criminal complaint against offenders, victims of lewd acts may also bring a separate civil sex abuse lawsuit.

This action may be brought within eight years of the plaintiff turning 18, or within three years of the date on which the plaintiff discovers — or reasonably should have discovered — that psychological injury or illness occurring after the age of majority was caused by the sexual abuse; whichever is later.

A conviction under Penal Code 288 need not be secured in order to file a civil lawsuit for damages. In fact, civil suits may prosper even in cases when the defendant was found “not guilty” of a lewd act in a jury trial, or that no criminal complaint under Penal Code 288 was filed.

Unlike criminal charges for lewd acts, the evidentiary weight required for civil suits is only that of a “preponderance of the evidence”; which is a lot less of a burden than that required for proof “beyond a reasonable doubt” in criminal cases.

Have you been charged with lewd or lascivious acts involving a minor? Call us now.