Sex offenses, especially to children, are severely punished in California. If you are charged, you risk facing a lengthy sentence in prison, paying hefty fines, and registering as a sex offender for the rest of your life. We at the Sex Crimes Attorney can help you fight sex crime charges against such as child molestation. Reach out to us for legal representation.

Understanding California Penal Code Section 288 PC

Penal Code section 288 PC is lewd or lascivious conduct with a child. It can be defined as a lewd act made on the body of a child below fourteen years with an intent to gratify or arouse the lust of the minor, the perpetrator, or somebody else.

A person commits a lewd act when they either:

  • Willfully touch a body organ of a minor or
  • Willfully cause the minor to touch their own body, defendant's body, or somebody else's body

Definition of Key Legal Terms

Willfully

An act is said to be willful if it was committed on purpose. It's not a must that you intended to violate the law, gain an advantage, or injure somebody else.

That means under PC 288 an accidental interaction with a minor even on sexual organs is not lewd conduct.

Touching

To break Penal Code Section 288 PC, you must touch a minor's body part or make the minor touch somebody else.

It is important to note that the touch does not necessarily have to be on sexual organs or the skin. It could be any part of the body or done either through clothes or on bare skin.

Additionally, actual arousal isn't needed. What is important is whether that touching was deliberate and intended for arousal purposes or for satisfying a sexual need.

Lewd Act Achieved by Fear or Force

Using fear or force to violate PC 288 can subject you to more severe penalties. Under California Penal Code Section 288(b)(1) PC, you are likely to face more serious consequences if the lewd act is achieved by:

  • Violence
  • Duress
  • Force
  • Menace or threat that places the minor in fear of both immediate and illegal bodily hurt to the minor or somebody else

Force

The amount of force needed for a conviction should be significantly more significant than or different from the wrongful act itself.

A perfect example could be when a defendant slaps a minor first so that they can grab the minor's breast.

Fear

A lascivious act is achieved using fear when:

  • The minor is unreasonably scared or frightened, and the perpetrator discovers it and then takes advantage or
  • The minor is reasonably and actually afraid

Duress

As far as Penal Code Section 288(b)(1) is concerned, duress is using implied or direct threat of danger, retribution, violence, hardship or force enough to make a reasonable individual submit to or do something that they wouldn't submit to or do.

Typically, the sum of case circumstances determines duress. These circumstances could include (not limited to):

  • Threats to injure the minor
  • Cautionary notices to the alleged victim which disclosing the molestation could jeopardize their family
  • Controlling the alleged victim physically if the minor tries to resist

When determining whether the lascivious act was achieved by duress, the judge will put the following into consideration:

  • The child's age
  • The relationship between the defendant and the minor
  • The size difference between the defendant and the minor
  • Where the touching happened

Menace

According to the California law, a menace is an act, statement, or threat that shows an intention to harm another person.

How Intent in California is Proved

The intent is a difficult fact of an offense to prove. Whether a person acted with intent is something that only the jury should determine while putting the  following case's circumstances into consideration: 

  • Whether the perpetrator and the victim know one another
  • The touching's nature
  • Lack of not guilty explanation
  • Where the touching took place

California Penal Code Section 288 PC Penalties

The penalties under PC 288 vary depending mainly on:

  • The child's age
  • The criminal history of the perpetrator
  • Whether threats or force was used

Discussed below different scenarios and their penalties:

  1. Minor below Fourteen Years of Age where No Threat or Force was Used

When there is no force used, the lewd act against a minor below fourteen is California Penal Code Section 288 (a) PC. It is a felony, and it attracts:

  • Three, six, or eight years in prison and
  • A maximum fine of $10,000

The jury can also decide to grant probation and a maximum of a year in jail instead. However, it is worth noting that even if time is not served, violation of PC 288 is a California felony sex crime.

Who Qualifies for California Formal Probation?

To qualify for probation, the judge considers several factors that relate to the crime's circumstances and criminal history.

Formal probation comes with many terms and conditions which could include spending one year in jail.

  1. Minor below Fourteen Years Where Threat or Force is Involved

Lewd conduct against a minor below fourteen years of age that is achieved by violence, duress, threats, or force is a violation of PC 288 (b)(1). It attracts the penalties below:

  • A maximum fine of $10,000
  • Five, eight, or ten years in California state prison

Notably, if convicted with PC section 288 (b)(1), you must serve prison time; defendants do not qualify for probation.

  1. Lewd Act leading to Bodily Injury to a Child Below Fourteen Years

There are numerous statutes which consequences for lewd acts could increase if a minor is injured. They include:

  • California Penal Code Section 667.61(d)(7) PC- twenty-five years to life imprisonment for personally causing bodily harm to a victim below fourteen.
  • California Penal Code Section 288(1) PC - Life imprisonment for personally causing bodily harm to a victim below fourteen.
  • California Penal Code Section 12022.8 PC- Five years sentence enhancement for causing severe bodily injury.

The prosecution team may choose to charge all or any of the statutes. Consequently, if you inflict physical harm on a minor below fourteen years when committing lascivious conduct, you risk facing a sentence enhancement of addition five (5 years or life imprisonment.

  1. When the Child is Fourteen or Fifteen Years of Age

According to PC 288(c)(1), it is an offense to engage in lascivious conduct against a child who is fourteen or fifteen years old when you are more than ten years older. It is a wobbler; it can be charged either as a felony or a misdemeanor. Typically, the prosecutor chooses what to charge with depending on your previous criminal history and the case's facts. 

If charged with a misdemeanor, you will face:

  • One year in jail
  • Registration as a sex offender

A felony, on the other hand, carries the following penalties:

  • Sixteen months, two years or three years in prison
  • Formal probation which comes with a year in jail
  1. If the Child was Sixteen or Seventeen Years of age

If the child was sixteen or seventeen years at the time of lewd conduct, you wouldn't be charged with Penal Code Section 288 PC. Instead, the offense will be charged under either:

  • Penal Code Section 243(a) PC (Sexual Battery
  • California Penal Code Section 261.5 PC (Statutory Rape)
  1. Subsequent or Second PC 288 Conviction

If you have a previous sex offense conviction, you risk been charged as a habitual sexual offender under PC 667.71(b).

Habitual sex offenders in California face a 25-year sentence to life imprisonment.

Does a PC 288 Conviction Attract Additional Penalties?

If convicted of PC 288, you will face the following additional penalties other than fines and jail sentence:

  • Compulsorily registration as a sex offender,
  • The potential withdrawal of professional licenses, and
  • Victim compensation for taking care of the alleged victim's psychological or medical treatment

Sex Offender Registration

If convicted of PC 288, you should register on the sex offender registry under Megan's Law.

The jury does not have the discretion to prevent defendants from registering as sex offenders. Nonetheless, criminal defense attorneys could be in a position to get the accused a plea bargain to a crime that does not need registering as sex offenders like a battery (Penal Code Section 242 PC).

Sex Offender Registration Duration

Currently, the law dictates that all individuals convicted of PC 288 to register as sex offenders for life.

However, from January 2021, sex offenders shall be classified into three (3) tiers based on the seriousness of the crime.

  • Lifetime Registration (Tier 3)

The most severe sex offender will in Tier three that needs a lifetime registration. It includes:

  1. A subsequent Penal Code Section 288(a) PC conviction or
  2. A Penal Code Section 288(b)(i) PC conviction
  • Registration for Twenty Years

First-time defendants convicted with Penal Code Section 288(a) PC will be in Tier two. Tier two carries a twenty-year registration.

Legal Defenses

There are numerous legal defenses that your criminal defense attorney can use to beat PC 288 allegations. However, before discussing them, it's worth noting that each case, the circumstances surrounding the case, and the perpetrator are unique. That is why your attorney should evaluate the case's facts before coming up with a defense plan.

Moreover, the minor's consent isn't a legal defense to PC 288 charges. According to the law, a child can't consent to an illegal sexual act.

The Minor is Lying

Normally, the prosecution team and police rely on the minor's credibility, especially in a case without physical corroboration or a confession. To check whether the minor is telling the truth, your attorney will:

  • Subpoena the alleged victim's social media platforms, medical records, counseling, school, and emails, and
  • Interview the victim's schoolmates, family, online contacts, and friends

The Victim is Mistaken

Your defense attorney could also argue that the minor was inappropriately touched but does not know who the perpetrator is. Typically, this occurs when:

  • The accused is does not know the minor
  • The accused and the perpetrator are not from the same race
  • The minor was young
  • The touching happened in an unfamiliar or dark place

Your lawyer should conduct thorough investigations of the case's circumstances as a way of undermining the minor's identification of you as the offender.

The Touch was Accidental

To convict you of Penal Code Section 288 PC, the prosecutor must prove that you willfully touched the child or you willfully made the child touch you, themselves, or somebody else. If the touch was accidental, you are innocent.

There was no Intention to Cause Arouse

It is illegal under PC 288, to make contact to arouse yourself or the minor sexually. However, if you did not purpose to gratify or arouse yourself or the child sexually, then that isn't child molestation.

The Child is not in the Age Bracket for the Offense

Penal Code Section 288 PC prohibits two categories of the crime in question:

  • Lewd acts against a minor below fourteen
  • Lewd acts against a child who is fourteen or fifteen and who is ten (10) years younger than the accused

That means you may not be guilty if:

  • The child is fourteen or fifteen and not more than 10 years younger than you
  • The child is above fifteen years of age

Instead, you could be charged with either PC 261 or PC 243.4.

You were a Victim of Police Misconduct or an Unlawful Search

Sexual crimes against minors in California are harshly prosecuted. When proof in Penal Code 288 PC is acquired by breaking the accused's constitutional rights, your experienced attorney can be in a position to have the case dismissed. Common ways the prosecutor or law enforcers can violate your rights include:

  • Entrapment
  • Coerced confession
  • Police misconduct like planted evidence or false testimony
  • Unlawful search and seizure

Probation and Mitigation 

Sometimes a defendant may confess to law enforcers, and the proof supports those charges. In this case, the attorney will not claim that the abuse did not occur. Instead, they will argue that the crime is as a result of an isolated occurrence, and the act will never happen again.

To achieve this, the lawyer will pay attention to the defendant's good character. When successful, the defendant receives probation rather than serving many years in prison.

So how does mitigation work? Before the judge grants probation, the judge should receive a mental evaluation (Penal Code Section 288.1 PC report) from a psychiatrist or psychologist. The psychiatrist or psychologist will interview the accused as well as put the case's facts and the accused's history into account.

The objective is determining whether the accused is a threat to other minors and whether there is a likelihood of the lewd act recurring.

Statute of Limitation for Lewd Acts Against a Minor under Fourteen Prosecution

Recently, the state of California imposed laws that enhance the deadline in which sex offenses against children are prosecuted.

According to Penal Code Section 801.1 PC, a felony action for PC 288 can begin any time the alleged victim turns forty. This time frame applies to offenses either:

  • Whose time frame was effective before 2015, hasn't run as of January 2015
  • PC 801.1 committed after January 2015

That means felony prosecutions for PC 288 can be filed even more than 25 years after the abuse.

Practically, the more time the victim wait to press charges, the more overwhelming it becomes to prosecute.

How California Penal Code Section 288 PC Allegations Are Investigated

The state of California has devoted significant resources to investigate sex offenses against children. Also, most law enforcement authorities have departments that pay attention to sexual abuse against children. Normally, detectives experienced on how to deal with forensic science and minor victims handle these cases.

Here is an overview of how a PC 288 case unfolds:

  1. The Incident is Reported to the Police

More often than not, PC 288 cases start when the accuser reports the abuse to the police. In most cases, the minor will tell an adult who reports the incident to the police. It could be their parent, teacher, school counselor, or a relative. In other cases, the minor will directly contact the law enforcers. 

There are instances when the victim will report the abuse long after its occurrence. For instance, an adult can report a lewd act that occurred when they were a minor. In this case, the accuser could argue that:

  • They were confused or afraid to report
  • They did not understand the abuse's nature at the moment
  • Did not want to get the accused in trouble
  1. The Accuser is Interviewed

The next step involves the police interviewing the victim for information about the abuse. The interviews are done either by a detective specialized in handling minor victims or a child psychologist.

Normally, the interview will be video-or audio-taped. The minor's parents can be present or not.

  1. Forensic Analysis and Medical Examination

Next, the law enforcers will order a forensic analysis and a minor's medical examination, particularly if the allegations are recent or involve vaginal or anal penetration.

The examination could involve analysis and swabs of the minor's body, area of the incident, and minor's clothes.

The law enforcers will also look for the suspect's DNA in their saliva, skin, semen, or hair. 

Typically, vaginal or anal penetration causes injuries like lesions and microscopic tears to the minor's body. The medical examiner will identify, document the injuries, and later explain to the court how the injuries may have occurred.

  1. Pretext Call

In child molestation cases, the law enforcers will ask the victim to call the accused. This call will be recorded, and the police will guide the victim on what to do.

The call is intended to make the accused to confess.

  1. Search for More Victims

If the child was molested, there is a high likelihood that there are other alleged victims. The police will search and try identifying all minors exposed to the accused misconduct.

If the other victims report that similar conduct occurred, this proof strengthens the prosecutor's case.

  1. Suspect Interrogation

If the law enforcers can obtain a confession, it usually seals the case. Police may decide to either interview the suspect while out of police custody or detain the accused and then interview them at the jail.

When interviewing outside custody, the police will not read the accused the Miranda rights. The police can visit the suspect at their home and pretend to be on the suspect's side. This approach is used to make the accused comfortable and reveal the truth.

  1. Law Enforcer Polygraph Examination

In the event the accused denied the allegation, the law enforcer will ask the accused to take a polygraph exam. A polygraph examination is voluntary.

The proof related to a polygraph is prohibited in court. Nevertheless, if the accused passes the test, this could convince the court that they are not guilty and charges might not be filed.

On the contrary, if the accused fails the polygraph, that will convince the prosecution team that the accusation is true.

Related Offenses

There are several sex crimes that can be charged alongside PC 288. They include:

Sending Harmful Content to Seduce a Child (PC 288.2)

If a defendant knowingly emails or sends erotic content to a child with a purpose of arousing themselves or the child, they could be convicted of PC 288.2.

Violation of PC 288.2 is a wobbler, and you risk serving time. This law exempts parents and individuals who serve for sex education or legal, scientific purposes.

Contacting a Child to Commit a California Felony (PC 288.3)

If you reach out to a child either through a text, email, or phone with the intent of committing a felony like rape, child pornography, or kidnapping, you are violating PC 288.3.

It is a California felony and carries three years in prison and registration as a California sex offender for life.

Continuous Sexual Abuse of a Minor (PC 288.5)

PC 288.5 involves participating in more than three lewd acts for at least three months with a child below fourteen years. It is punished by six to sixteen years in prison.

Child Pornography

Under California Penal Code Section 311, it is illegal to distribute or possess content that shows children engaging in sex or a child's genitals.

If you depict this content to a minor while engaging in lascivious conduct with that child, you will be convicted of both child molestation and child pornography. Violation of PC 311 attracts hefty fines and incarceration.

Find a California Child Molestation Attorney Near Me

You can face huge fines or have a lifetime registration as a sex offender for a conviction of child molestation under PC 288. Moreover, a conviction could ruin your career, family, and reputation. The stakes could not be higher; that is why it's essential to hire a sex offense defense attorney. For many years, the Sex Crimes Attorney has fought for the rights and freedom of clients in California. For more information on how we can help you, contact us at 888-666-8480.