PC 288 criminalizes lewd acts with a minor. It is a grave offense to willfully touch a child below 14 years of age for sexual gratification. Additionally, under the same statute, it is an offense to make a minor touch himself/herself or a third party for sexual gratification. The crime is consequential as it is punishable by time in prison or jail, a significant fine, and a sex offender registration requirement. These penalties adversely impact your socio-economic life post-conviction.

Hiring a criminal defense attorney soon will be your best choice for fighting the charges and protecting your future. As a start, the California Criminal Lawyer Group team details the crime described by PC 288, the likely penalties, and the defenses you can assert in fighting the lewd acts with a minor charges. Reach out to us if you or a loved one faces PC 288 violation charges in Santa Ana.

Lewd Acts With a Minor Under PC 288

PC 288 defines lewd conduct with a minor as lascivious or lewd behavior performed upon the body of a child below 14 years of age to sexually arouse or gratify the child, the perpetrator, or a third party. Further, you commit a lewd act with a child when you cause a child to touch himself/herself or a third party for sexual purposes.

Criminal prosecution for lewd conduct with a minor follows after a defendant is accused of touching or fondling a child’s sexual organs or molesting a child. However, you can face PC 288 violation charges even if:

  • You did not touch the child’s sexual organ,
  • The minor did the touching — You will face criminal prosecution even if you urged the child to touch himself/herself, you, or a third party, or
  • The touching was achieved over a minor’s clothes rather than bare skin.

Here are a few actions that fit PC 288’s definition of lascivious conduct with a child.

  • Kissing a child’s inner thighs to gratify yourself sexually
  • Placing a child, nine years of age’s hand on your crotch
  • A tutor groping a child under 14 years of age’s breasts through the child’s clothing

Particular terms in PC 288’s definition need to be addressed in detail. These are:

  • Willful action — You commit an act willfully when you do it intentionally or deliberately. However, you need not necessarily have intended to break the law, gain undue advantage, or cause harm to the victim. Therefore, accidental touching of a child will not result in a conviction under PC 288.
  • Touching — Prosecutors must prove you touched a minor’s body or caused the child to touch himself/herself, you, or a third party. However, prosecutors need not prove that you or the child touched a child’s sexual organ. Any part of the child’s body is sufficient to prove your guilt. Additionally, the contact can be on bare skin or indirectly through clothing.

Arousal is not crucial to establishing guilt. That is, prosecutors need not prove that the acts aroused you, the child, or a third party. He/she need only demonstrate that the actions intended to satisfy a sexual desire or cause arousal.

Lewd Acts Accomplished Through Fear or Force

Section (b)(1) of the statute criminalizes using force, fear, or threats of harm to the child to force the child to comply with the lascivious acts. Defendants who use coercion, force, violence, menace, or the threat of physical harm to the victim or another individual will be subjected to harsher penalties.

The critical elements in a PC 288(b)(1) violation are:

Fear

Perpetrators achieve lewd acts when they cause the child to be reasonably afraid or be afraid enough to engage in the deeds. Alternatively, fear is achieved when the child is unreasonably terrified, and the defendant exploits this.

Duress

Duress is achieved by threatening or using violence, hardship, force, or retribution to cause the child to submit to or engage in lascivious acts he/she would not otherwise have engaged in or submitted to.

The jury considers certain circumstances in deciding whether duress was significant in the case. These factors include:

  • The minor’s age
  • The location where the incident occurred
  • The minor’s relationship with the defendant
  • The defendant’s size in comparison to the victim

Note: Duress is established after considering all circumstances. Here are some of the circumstances past juries have upheld as instances where duress was evident:

  • Physically binding a child to prevent the child’s attempt to resist
  • Threatening harm to the victim
  • Warning the victim of harm to him/her or his/her family members should he/she reveal the lewd acts.

Menace

Menace is an implied or express threat of action likely to result in physical harm to the victim or another individual like the victim’s family member.

What Prosecutors Must Prove for You to Secure a Guilty Verdict

Prosecutors bear the burden of proof in criminal cases. They should prove the case beyond a reasonable doubt. Only then can the jury find you guilty of lewd conduct with a minor.

  • You willfully touched a minor’s body through clothing or on bare skin
  • You intentionally caused the child to touch your, a third party's, or his/her body through bare skin or clothing
  • You intended to annoy, arouse, appeal to, or gratify your own, the minor’s or a third party’s sexual desires, and
  • The child was under 14 years of age at the time of the act

Note: Lewd conduct as described in Penal Code 647(a) refers to touching genitals, buttocks, or a lady’s breasts. However, under PC 288, lewd behavior with a child involves touching any part of the child’s body and is not specific to the buttocks, breasts, or genitals.

Additionally, your intent is particularly pivotal for you to be found guilty and is one that is challenging to prove. A defendant’s intent is a question of fact that a jury will decide after considering a few factors, including:

  • The nature of touching
  • The context of the touching
  • The nature of the relationship between the defendant and the victim
  • The absence of a logical reason by the defendant to explain the touch

Legal Defenses You Can Use in a PC 288 Violation Charge

Having an attorney increases your chances of securing a favorable outcome. Your attorney will seek to negotiate with the prosecution. Should the negotiations fail, a trial is inevitable. Your attorney will choose any of the following defenses depending on the circumstances of your case.

Note: Under the law, minors cannot consent to unlawful sexual acts. Therefore, consent is not a defense in a lewd act with a minor case.

a)  Contact Was Accidental

You are only guilty of PC 288 if you willfully touched a child. A touch, though inappropriate, could have been accidental and thus lacked deliberateness or wilfulness. Your attorney could present the accidental touch defense in this case.

b)  Lack of Intent to Arouse

Prosecutors must establish that you intended to arouse or sexually gratify yourself and the child. Intent is difficult to prove, and this is an opportunity for your attorney to challenge the charges under the lack of intent defense.

For example, James, Robin’s uncle, notices her scratching her inner thigh. Concerned, he decides to check. He then asks Robin to lift her skirt, and upon closer examination, he finds out the itch was because of a rash.

The contact, in this case, was aimed at addressing Robin's itch and not to sexually arouse or gratify either party.

c)  Mistaken Identity

Another individual could have inappropriately touched the child. However, the minor could mistakenly point to you as the perpetrator. It is not uncommon for children to mistakenly point out individuals as the perpetrators of lewd acts. Here are common reasons why:

  • The occurrence was so psychologically impactful that it impaired the minor’s recollection
  • The child was very young
  • The perpetrator was unknown to the child, and the minor pointed to a familiar face.
  • Race similarities between the perpetrator and the child’s description point to you as the culprit

Experienced attorneys conduct independent investigations to ascertain the facts of the case. You can expect these investigations to uncover the circumstances surrounding the case and why your accuser misidentified you as the culprit.

d)  False Accusations From Your Accuser

Prosecutors rely on the alleged victim’s testimony, especially if the case lacks physical evidence to corroborate the accusations. There is a possibility that the allegations are false. Defense attorneys resort to a few approaches to determine whether the minor is being truthful. These include:

  • Interviewing the minor’s friends, family, school mates and online contacts
  • Subpoena the alleged victim’s counseling and school records, as well as medical records, social media accounts, and emails
  • Conduct a thorough background check of your accuser and any witnesses presented by the prosecution

Any evidence of your accuser’s deceitful past casts doubt on the credibility of their accusations.

In other situations, disgruntled spouses push their children to make false accusations against the other parent. This accusation influences a child custody battle against the accused. Experienced attorneys will establish the truth and the motive behind the false accusation and present it to the jury in your defense.

e)  The Child’s Age Does Not Fit PC 288’s Provisions

An individual is only guilty of a PC violation if he/she:

  • Engages in lewd acts with a child below 14 years of age and
  • Engages in lascivious conduct with a child who is 14 or 15, and you should be at least ten years older than the child

It, therefore, follows that a defendant is not guilty under PC 288 if the child was more than 15 years old at the time of the incident or the minor, although 14 or 15 at the time, was less than ten years of the defendant’s age.

Note: Whereas the above age provisions absolve you of PC 288 penalties, you could be criminally culpable for statutory rape under PC 261 or sexual battery under PC 243.4.

f)  You Were a Victim of an Illegal Search and Seizure

While the case for securing the interests of minors has been made, it is no excuse for overzealous prosecution. The mention of lewd acts against a child triggers police officers and prosecutors who defy the law to secure a conviction.

The Fourth Amendment protects citizens from illegal searches. Further, police and prosecutors’ conduct should be within the legal provisions. Should the police and the D.A’s office operate beyond the law, an experienced attorney will establish the violation and challenge any evidence obtained from the search and seizures.

Penalties Following a Conviction for Lewd Acts With a Child

PC 288 outlines the varying degrees of significant penalties for individuals convicted for engaging in lewd acts with minors. The child’s age, whether force or fear was used, and the defendant’s criminal past inform the punishment choice.

The Use of Force or Threats

Lewd conduct with a child is a felony violation. The penalties are harsher if the jury finds you used force or threats.

If you engaged in lewd acts with a child below 14 years at the time of the crime and did not use force or threats, you violate PC 288(a). You will receive three, six, or eight years in prison with a fine of up to $10,000 upon conviction.

A judge can grant probation instead of prison time. You will, however, have to spend one year in jail. The judge takes into account the circumstances of the case and a defendant's criminal past to determine a defendant’s eligibility for parole. If you do not have prior convictions and the circumstances are not egregious, you are a likely candidate for parole.

Use of Force or Threats to Commit Lewd Acts With a Minor

You will receive increased felony penalties if the jury finds you used force, duress, violence, or threats to force the child to engage in lewd conduct who was less than 14 years old at the time. The use of force or threats is a violation of PC 288(b).

This offense is punishable by five, eight, or ten years in prison and a fine of up to $10,000.

Defendants convicted of a PC 288(b) violation are not eligible for probation.

The Victim Suffered Bodily Harm Because of the Lewd Act

Should the victim suffer physical harm following a lewd act, the penalties assigned to a conviction vary depending on the proven circumstances of the case. The penalties include:

  • Life in prison for personally inflicting physical harm to a victim below 14 years of age, pursuant to PC 288(i)
  • 25 years to life in prison for causing bodily injury to a victim who was below 14 years of age at the time of the crime, pursuant to PC 667.61(d)
  • A five-year prison enhancement for inflicting great bodily injury on the victim, pursuant to PC 12022.8 — Great bodily harm refers to substantial physical injuries.

When the Victim’s Age Was 14 or 15

PC 288(C) issues penalties for individuals convicted of lewd acts with minors aged 14 or 15 when the defendant committed the crime and if the defendant was at least ten years older than the victim.

A violation of PC 288(C) is a wobbler offense. You can be charged with a misdemeanor or a felony. Prosecutors rely on the facts of the case and a defendant’s criminal background to inform their decision to pursue misdemeanor or felony charges.

If convicted of misdemeanor violations, you are looking at a jail time of no more than one year. This offense also imposes a sex offender registration requirement.

A conviction on felony charges results in a prison sentence of 16 months, two or three years. Alternatively, the judge could issue probation terms as an alternative to prison time.

When the Victim’s Age Was 16 or 17

Note: Penal Code 288 is specific to minors under 14. If the victim was 16 or 17 years old at the time of the incident, the D.A. would pursue charges for statutory rape under PC 261.5 or sexual battery under PC 243.4(a).

Statutory rape is a wobbler offense. A conviction on misdemeanor charges is punishable by one year in jail and a maximum fine of $1,000. Felony convictions, on the other hand, result in 16-month, two, or three-year prison sentences. If the defendant was 21 years of age or older and the victim was at the time, the judge could impose a two, three, or four-year long prison sentence and a fine of up to $10,00.

Sexual battery is also a wobbler offense. A conviction on misdemeanor charges is punishable by up to six months in jail, a fine of up to $2,000, or up to three years if the alleged victim was your employee. PC 243.4 allows for probation terms to be issued as an alternative to jail time.

Sexual battery felonies are punishable by two, three, or four years in prison and a potential sentence enhancement of three to five years. Additionally, a judge will impose a fine of up to $10,000 and a requirement to register as a lifetime sex offender.

Additional Consequences Following a Conviction for Lewd Behavior With a Child Below 14 Years

Below are additional consequences that a conviction under PC 288 results in:

  • Mandatory registration as a sex offender
  • Possible victim restitution fines to cater to the victim's medical or psychological treatment
  • Potential loss of a professional license like medical or legal professional licenses.

Sex Offender Registration

PC 290, Megan’s Law, requires individuals convicted of certain sex crimes, like lascivious acts with a minor, to register as sex offenders.

You can avoid registering as a sex offender during plea bargain negotiations with the prosecution. However, once the case proceeds to trial and you are convicted, the sex registration requirement is unavoidable.

Megan’s Law details three tiers based on the severity of the crime.

First-time offenders of PC 288(a) are Tier 2 offenders. PC 290 requires them to register as sex offenders for 20 years.

Subsequent or first-time offenders of PC 288(b)(i) are Tier offenses. A conviction results in a lifetime sex offender registration.

Statute of Limitations for a PC 288 Violation

The time frame provided for victims of lewd behavior when they were minors increased significantly following the enactment of several laws. In particular, PC 801.1 provides that victims can seek criminal action against a perpetrator of lewd conduct when they were minors before the victim turns 40.

It is also worth pointing out that the longer a victim takes to seek criminal culpability, the more difficult it is to prosecute.

How Police Officers Investigate Allegations of Lewd Behavior With a Minor

The state has committed significant resources to child protection. Law enforcement has units and departments tasked with investigating sex crimes against children. Here is the sequence of activities that an investigation entails.

  • Police officers receive a report of an alleged lewd act involving a minor — In most cases, the minor is accompanied by an adult when filing a complaint with the police department. In other cases, the child will seek criminal prosecution when they are adults.
  • An interview quickly follows after the child or an adult reports the incident. Since most cases are filed when the victim is a minor, police officers conduct interviews in the presence of the child’s parent or guardian, a psychologist, or a detective with specialized training in handling children.
  • Officers and experts then conduct medical or forensic analysis to establish evidence of vaginal or anal penetration and collect any evidence of the perpetrator’s DNA.
  • Make a pretext call to the suspect aiming to have the suspect confess to the crime — The officers will record the conversations and submit them as evidence in a trial.
  • The officers will search for other victims to establish a pattern of behavior.

Engage an Experienced Santa Ana Criminal Defense Attorney Near Me

Are you or is a loved one charged with lewd acts with a minor in Santa Ana?

Reach out to the California Criminal Lawyer Group for legal assistance. We will negotiate with the prosecution for reduced charges or a case dismissal. Should the negotiations fail, we will represent you in court and present an ideal defense against the charges. Contact our team today at 714-844-4151 for a free, confidential case evaluation.