If you have been charged with child molestation under California Penal Code 288 PC, you may face serious legal consequences. Child molestation involves acts with minors under 14 years old, such as touching them to fulfill your sexual desires.
The crime is classified as a felony, so a conviction could see you serving up to eight years in prison. You may also be required to pay fines and restitution to your victim and register as a sex offender for life. The repercussions can make finding employment, housing, and even social acceptance difficult.
Because of the harsh consequences of child molestation, you should seek legal counsel upon facing arrest in California. Your criminal lawyer must have experience dealing with cases where clients have been accused of child molestation. At Sex Crimes Attorney, we have experienced defense lawyers ready to take on your case and help you build solid defenses to help dismiss or reduce the penalty of the child molestation case you are involved in.
An Overview of Child Molestation in California
Per California Penal Code 288, a lewd act with a minor is defined as any act that involves touching the body of a minor under the age of 14 with the intent of sexual arousal or gratification. The court considers several elements before you can face conviction for lewd acts with a minor under Penal Code 288. These include:
- Touching the body of a child under 14 in a sexual manner. For example, the genital area, breasts, or buttocks.
- Forcing the child to touch their own body, your body, or someone else’s sexual parts.
- The intent of the act is for sexual arousal or gratification.
You could also be charged with having committed a lewd act even if:
- You performed the lewd act on a non-sexual organ.
- You molested the child with their clothes still on.
- You urged the child to touch themselves.
Definition of "Willfully"
California law defines "willfully" as an intentional act with a purpose or motive. Under child molestation, it means you acted with the intent to arouse or gratify yourself, the child, or someone else sexually.
Definition of "Touching"
In California, "touching" is any contact with the body, however slight, that is done with sexual intent. Contact can include physical contact, such as touching or groping, and non-physical contacts, such as directing a child to touch you, themselves, or someone else.
For example, if you are a daycare worker who repeatedly touched the genitals of a child in your care or a family member who coerced a child into sexual acts with them, you are guilty of a PC 288 violation.
Penal Code 288 (b)(1) Lewd Act That Is Accompanied by Use of Fear or Force
A violation of Penal Code 288(b)(1) could see you facing more severe consequences if you accomplished the sexual acts through the use of fear or force.
The Legal Definition of Force
Under California law, “fear” is using physical force or violence to commit a lewd act with a minor. This could include holding the child down or threatening to harm them if they do not comply.
The Legal Definition of Fear
You could coerce a child into consenting to be touched or touching themselves if you incorporate threats of physical harm, emotional abuse, or even blackmail into your pursuit to molest them. For example, if you threaten to hurt a child's family if they do not comply with your sexual advances, this would be considered fear under the law.
The Legal Meaning of Duress
Duress refers to situations where you force the child to perform a lewd act because you have placed them under extreme pressure or fear. This is done when you use your authority or trust to coerce the child into performing sexual acts.
The Legal Meaning of Menace
Menace occurs when you threaten or intimidate a child into performing a lewd act. This could include situations where you use your size or strength to intimidate the child or coerce them into performing sexual acts.
For example, if John threatens to harm Mary's pet (Mary is 13 years old) if they do not comply with his sexual advances, this would be considered a menace under the law.
How Does the Prosecutor Prove Sexual Intent?
Before being convicted of a Penal Code 288 violation, the prosecutor must prove that you had the specific intent to engage in sexual conduct with a minor. For example, the Coopers invite their long-term friend James to take care of their daughter Miriam for a while, and while at it, James is found assaulting their daughter sexually. He is also discovered to have made similar advances and even threatened to harm Miriam’s parents if she did not cooperate with him. In this case, James is guilty of a PC 288 violation.
Sentencing, Punishment, and Penalties For PC 288
Under PC 288, punishments vary depending on the following factors:
- The age and vulnerability of the minor.
- Whether the sexual act was enacted by incorporating threats or force.
- Your criminal history.
- The nature of the physical contact between you and the child.
- Your relationship with the child.
- The location and circumstances in which the lewd act occurred.
- Any statements you made to the child or others regarding the lewd act.
Child Under 14 - No Force or Threat Used
Under PC 288(a), committing a lewd act against a child under 14 without using force or threat is a crime. In California, this offense is a felony, and upon your conviction, you could face three, six, or eight years in state prison, a fine of up to $10,000, and lifetime registration as a sex offender. Regardless of offenders’ relationships with the victims, anyone can be charged with violating PC 288(a).
Lewd Act Involving Threat or Force Against a Child Under 14
In California, you violate PC 288(b)(1) when you use threat or force to commit a lascivious act against a minor under 14. The penalty for this crime is serving five, eight, or ten years in state prison, a fine of up to $10,000, and lifetime registration as a sex offender.
Lascivious Act Resulting in Bodily Harm to Victim Under 14
Under PC 288(b)(2), you become an offender when the lewd act you perform on a minor under 14 harms them. If convicted, you could face sentences including:
- Serving 25 years to life in state prison for causing bodily harm to a victim below 14 years under Penal Code 667. 61(d)(7).
- Serving a life sentence under Penal Code 288(i).
- A 5-year sentencing enhancement for causing great bodily injury under Penal Code 12022. 8.
Lewd Act Against a Minor who is 14 or 15
Penal Code 288(c)(1) is a wobbler offense, which means a prosecutor could charge you with a misdemeanor or felony depending on the circumstances of your case and your criminal record.
As a felony charge, violation of PC 288(c)(1) could see you face 16 months, two years, or three years in prison plus registration as a sex offender. The penalty for a misdemeanor conviction is up to one year in county jail, a fine of up to $5,000, and lifetime registration as a sex offender.
Lewd Acts Against a Child who is 16 or 17
If you are found guilty of committing a lascivious act with a 16- or 17-year-old minor in California, then you will not be prosecuted under PC 288. The following statutes make it a crime when a lewd act is committed on a minor of 16 or 17 years:
- Penal Code 243.4(a), sexual battery law.
- Penal Code 261.5, statutory rape law.
Second or Subsequent Penal Code 288 Conviction
You may face enhanced penalties if you are a second-time or subsequent offender under Penal Code 288. The possible punishment for a second or subsequent Penal Code 288 conviction includes imprisonment for up to 25 years in state prison.
Additional Consequences of a Penal Code 288 Conviction
Below are some of the additional consequences you may face if you are convicted under Penal Code 288:
Mandatory Registration As A Sex Offender
If you are convicted of a sex crime involving a minor, you must register as a sex offender. Your name, photo, and address will be publicly available online, and you must update your information regularly. This can significantly affect your employment, housing, and personal relationships.
Limited Job Opportunities
Being a registered sex offender can make it challenging to find employment. Many employers are hesitant to hire individuals with a criminal record, especially one that involves a sex crime with minors. Additionally, some industries, such as education and healthcare, may be off-limits to registered sex offenders.
Restricted Living Arrangements
Many landlords are unwilling to rent to registered sex offenders, and some states have laws that prohibit them from living near schools, parks, and other areas where children may be present.
A conviction for a sex crime can strain relationships with family members, especially if the victim is a family member or close friend. You may also face restrictions on your ability to see your children, depending on the circumstances of your case.
The social stigma associated with being a registered sex offender can be overwhelming. You may face discrimination, harassment, and isolation from your community. This can lead to depression, anxiety, and other mental health issues.
Registration as a Sex Offender for Convicts Under Penal Code 288
If you are convicted of a sex crime under Penal Code 288, you must register as a sex offender for the rest of your life. This is a serious consequence that can have long-lasting impacts on your life. Registering as a sex offender involves providing personal information, including your name, address, and photograph, to law enforcement. This information is then entered into a public registry that is accessible to anyone who wants to look up a registered sex offender.
You will also be required to update your information regularly, including any changes to your address, employment, or personal circumstances. Failure to do so can result in additional criminal charges. The registration process can also involve other requirements, such as attending counseling or completing a sex offender treatment program.
These requirements can be costly and time-consuming, adding to the overall burden of a sex crime conviction. On January 1, 2021, sex offenders were split into three “tiers.” The tiers will be based on the severity of the offense.
Tier 3 - Lifetime Registration
Tier 3 is the most serious category of sex offenders under Penal Code 288. Convicts classified under Tier 3 must register as sex offenders for the rest of their lives. The reasons why you might be classified as a Tier 3 sex offender include the following:
- You committed a lewd act with a child under 14 and used force or violence to do so. This is considered an aggravated offense and is punishable by life in prison. If convicted of this offense, you will almost certainly be classified as a Tier 3 sex offender.
- You have a prior conviction for a sex crime. If you were previously convicted of a sex crime unrelated to child molestation, you might be classified as a Tier 3 sex offender. This is because prior convictions are considered when determining the offense's severity.
Tier 3 sex offenders face some of the most severe consequences, including lifetime registration, community notification, and residency restrictions.
Tier 2 - Registration for 20 Years or More
Tier 2 sex offenders are required to register as sex offenders for at least 20 years. Below are two reasons why you might be classified as a Tier 2 sex offender:
- You committed a lewd act with a child under 14 but did not use force or violence. This is still considered a serious offense but not as severe as an aggravated offense.
- You committed a lewd act with a child between 14 and 17. This is still considered a sex crime but not as serious as a lewd act with a child under 14.
Tier 2 sex offenders face significant consequences, including community notification and residency restrictions. However, these consequences are generally not as severe as those faced by Tier 3 sex offenders.
Legal Defenses Against Child Molestation Accusations
If you are facing accusations of child molestation, several legal defenses may be available to you. The following are some defenses that may be used to fight against these accusations:
The Child Is Lying
False accusations of child molestation are not uncommon, and in some cases, a child may make false accusations due to coercion, manipulation, or other reasons. Your defense team may be able to present evidence that supports the theory that the child is lying, such as inconsistencies in the child's statements or evidence of other motives for making false accusations.
The Accuser is Mistaken
The alleged victim could be mistaken about your identity or the offense's nature. This defense may be used if there is evidence that the child has confused you with someone else or if there is evidence that the accuser's memory of the events is flawed. Your defense team can present evidence, such as witness testimony or physical evidence, that supports the theory that the accuser is mistaken.
The Touching Was Accidental
Another defense that may be used is that the touching was accidental rather than intentional or lewd. This defense may be used if there is evidence that the touching was unintentional, such as if the touching occurred due to an innocent mistake or misunderstanding. Your defense team may be able to present evidence that supports the theory that the touching was accidental, such as witness testimony or physical evidence.
You are The Victim of an Illegal Search or Other Police Misconduct
The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures. Any evidence obtained through an illegal search cannot be used against the defendant in court. If the police violated the defendant's rights in any way during their investigation, the defendant might be able to use this as a defense against the child molestation accusations.
Private Defense Polygraph Examinations
While the results of a polygraph test are generally not admissible in court, a defendant may choose to take one to demonstrate their innocence or to gather information that could be used in their defense. During a private defense polygraph examination, a trained examiner will ask you a series of questions while monitoring your physiological responses, such as changes in heart rate, blood pressure, and respiration.
The examiner will ask relevant and irrelevant questions about the alleged offense to establish a baseline for the defendant's physiological responses. After the examination, the examiner will analyze the results and provide a report to the defendant's attorney. The results may indicate that the defendant was truthful in their responses or may provide information that could be used in the defendant's defense.
Mitigation and Probation (PC 288.1 Report)
Mitigation and probation can also be used as defenses in child molestation cases. Under Penal Code 288.1, a defendant can be sentenced to probation instead of imprisonment if certain conditions are met. To be eligible for probation, you must:
- Admit guilt to the offense of violating PC 288 or a related offense.
- Agree to participate in counseling or other treatment programs.
- Waive the right to a trial and appeal the conviction.
- Agree to other conditions of probation, such as registering as a sex offender or having no contact with minors.
If you are granted probation, you must complete the terms, which include counseling, community service, and regular check-ins with a probation officer. If you complete your probation, you could avoid a prison sentence and have the offense expunged from your record.
Additionally, a PC 288.1 report can be prepared by a defense attorney to present to the court during the trial's sentencing phase. The report outlines the defendant's background, including their personal and family history, education, employment, and any mitigating circumstances surrounding the offense. The report may include character references and evidence of the defendant's rehabilitation efforts.
Statute of Limitations for a PC 288 Prosecution
In California, the statute of limitations for PC 288 child molestation charges depends on the alleged victim's age at the time of the offense.
For cases where the alleged victim was under 18 at the time of the offense, the statute of limitations is generally 20 years from the date the victim turns 18. This means prosecutors have up to 20 years to file charges against the defendant after the victim turns 18.
However, there are some exceptions to this rule. If DNA evidence is discovered that implicates the defendant, the statute of limitations may be extended. Additionally, if the defendant flees the state, the statute of limitations may be tolled or paused until the defendant returns.
Note that there is no statute of limitations for PC 288 cases where the victim was under 14 at the time of the offense. This means prosecutors can file charges against the defendant at any time, even many years after the offense.
Crimes related to child molestation
Several offenses are related to child molestation, which is a serious and often devastating crime. These offenses include:
- PC 288.2, Sending harmful matter to a child: This offense involves sending sexually explicit material to a child intending to arouse or satisfy the sexual desires of the sender or the recipient. This can include sending images, videos, or other sexually explicit content.
- PC 288.3, Contacting a minor with intent to commit a sexual offense: This offense involves contacting a minor with the intent to commit a sexual offense, such as molestation, rape, or other sexual acts. This can include online communications, phone calls, or in-person interactions.
- PC 311, Possession of child pornography: This offense involves possessing or distributing material that depicts minors engaged in sexual activity. Possession of child pornography is a serious offense that can result in severe penalties, including imprisonment and registration as a sex offender.
- PC 261.5, Unlawful sexual intercourse with a minor: This offense involves sexual intercourse with a minor under 18. This offense is often closely linked with child molestation involving sexual contact with a minor.
These offenses relate to child molestation because they involve sexual misconduct with minors.
Find a Sex Crimes Attorney Near Me
If you have been arrested for child molestation in California, the next step is to seek legal representation immediately. You can search for a qualified sex crime attorney in California to defend your rights and help build solid defense strategies. At Sex Crimes Attorney, we have experience defending clients against child molestation charges, as these cases can be complex and require specialized knowledge. Call us today at 888-666-8480 to speak with a knowledgeable defense lawyer.