The crime of lewd acts with a child is criminalized in California Penal Code 288 PC. If you were charged with this or any other sex crime, Lluis Law’s criminal attorneys can help you fight the charges.
We have over 50 years of combined experience dealing with these issues with good results for our clients. Call now and request a free consultation with any of our attorneys.
Below we explain in detail the elements of crime, sanctions and possible defenses.
The crime of lewd acts with a child in California
The definition of the crime of lewd acts with a minor is contained in California Penal Code 288 PC. It basically consists of intentionally touching a child under 14 to obtain sexual satisfaction or for the child to touch himself/herself or another person.
This crime is also known by the names of:
- Obscene acts with a child under the age of 14,
- Obscene acts in a child under 14 years old, or
- Acts of obscene or lewd conduct.
Elements of the crime of lewd acts with a child
The lewd act with a minor is constituted not only when the child is touched or caressed or there was sexual abuse. It also includes other acts in which:
- The contact was not in the genitals;
- The contact was on the minor’s clothes and not on his skin; or
- The child was the one who played at the request of the accused.
The crime materializes with the intention of the accused to seek personal or child excitement. But it does not require that there be real excitement.
To be convicted of this crime, the prosecutor must prove that:
- The act was voluntary, that is, the defendant had the manifest intention of doing it to violate the law;
- The minor was touched anywhere on the body on his clothes or bare skin; or
- The minor was forced to touch his or someone else’s body;
- With the intention of provoking lust or obtaining sexual gratification from the accused or the child.
- The victim was a minor under fourteen at the time of the act.
How is the intentionality of the fact proven?
One of the most difficult elements to prove in any violent crime (attempted murder) or sexual crime is intentionality. In this case, the jury must analyze the event as a whole and consider the following elements:
- The circumstances and context of the alleged crime.
- The affinity or knowledge of the accused and the alleged victim.
- The nature of the contact (how and where in the body was it)
- Whether there is a compelling explanation or not.
The cases of lewd acts with a child prosecuted in the California courts have been for:
- Babysitters rubbing the victim’s genitals, legs, and back.
- Teachers who insinuate their students and caress their hair, neck and thighs.
- Strange people who suddenly appear and reach into the victims’ breasts or underwear.
Other examples of lewd acts with a child
- Touching the crotch of a 12-year-old minor who is the defendant’s stepdaughter.
- Command an 11-year-old student to touch and / or masturbate in front of the teacher in exchange for placing a good grade.
- Showing pornography to a girl under 14 and stroking her breasts to make her aroused.
Penalties for sexual abuse of minors
Penalties for the crime of lewd acts with a child depend on a number of factors. For example: the age of the minor and the accused or if there was use of force or threats. Also if there is a defined pattern of lewd acts on the part of the accused.
|Violation of the Penal Code||Sanctions|
|Under 14, without use of force – Penal Code 288 (a) PC.||– 3, 6, or 8 years in a state jail, or|
– Formal probation (felony)
– Fine of up to $ 10,000.
|Under 14 years of age with the use of force – Penal Code 288 (b) (1).||– 5, 8 or 10 years in a state prison, and|
– Fine of up to $ 10,000.
|Under 14 years of age with bodily harm inflicted. Penal Code 288 (i) and PC 12022.8.||Prison for life.|
|Younger than 14 or 15 years old, the accused 10 years older or more. Penal Code 288 288 (c) (1).||– 1,2 or 3 years in state prison, and|
– Fine of up to $ 10,000; or
– Up to 1 year in the county jail, and
– Fine of up to $ 1,000.
|16 or 17 year old boy||It is processed as PC 261.5 (a) legal violation or PC 243.4 sexual assault.|
|Habitual Sex Offender – Penal Code 667.71 (b)||25 years of life imprisonment.|
|Lascivious act with force by the caregiver of the dependent – Penal Code 288 (b) (2)||– 5, 8 or 10 years in state prison, and|
– Fine of up to $ 10,000.
Sex offender registry
Persons sanctioned under Penal Code 288 require registration as California sex offenders. As of January 1, 2021, people prosecuted for this crime will be divided into three levels:
Level 1 : Registration for 10 years.
Level 2: Registration for 20 years.
Level 3: Registration throughout life.
People convicted for the first time of this crime will move to Level 2. Those who are in Level 2 will have to register as sex offenders for a minimum period of 20 years.
The level 3 lifetime record will remain for those who have:
- A second or subsequent conviction under PC 288 (a), or
- Any other conviction under PC 288 (b) (i).
Lewd act with the use of force
Furthermore, the crime of lewd act aggravated by the use of force will be judged as a “strike crime”. As established by the following laws:
- California Single Stroke Law – Penal Code 667.61.
- California Three Strike Law – Penal Code 667.
Under the one-hit law, causing bodily harm to the victim adds more years to the sentence. It is punishable by a sentence of 25 years in prison.
Under these same charges, the California Three Strike Law increases sentencing when there is a previous strike.
Additional penalties for lewd acts with a child
Apart from the penalties mentioned above there are other criminal consequences for this crime.
- Loss of license to practice a profession (for example, medicine, law, education).
- Loss of the right to acquire and possess a firearm; me
- For legal aliens possible removal / deportation or declaration of inadmissibility to the United States.
If you want more information on this subject, please call our offices or come and tell us about your case.
Social and civil sanctions
Being accused and convicted has other collateral consequences that must be carefully considered. A criminal record for a sex crime is particularly damaging to a person from a personal and professional point of view.
Some of these consequences can be:
- Problems getting a job.
- Loss of professional license to work in certain areas (education, health, law).
- Difficulty renting or buying a home.
- Prohibition to access state social assistance programs.
- Denial of custody of children.
Persons eligible for parole
Some accused of lewd acts may benefit from formal probation for serious crime. This means that you will be out of prison and must comply with the court’s guidelines.
When applying for parole, the court will consider certain factors related to the fact. Likewise, the criminal record of the accused. Before parole is granted, the convicted person may spend a minimum of one year in county prison.
A good sex crime lawyer will know the best strategy for the crime of lewd acts with a minor. It should be remembered that the child’s consent cannot be cited as a defense argument in these cases.
Although each case is different from the other, there are nevertheless certain common defenses that attorneys invoke:
The minor is lying
In the absence of solid evidence from the prosecution in these cases, the child’s testimony is generally used. To find out if the child is lying or not, the defense attorney will ask certain questions and try to present their evidence.
- Search for information at the accuser’s school, in emails, on social media, and in medical records.
- Interview the child’s family, friends, classmates, and the email contacts he maintains.
- Check the background of the accuser or the alleged witnesses to see if they are used to lying.
The investigation can yield interesting data related to the accuser. Detect if the child’s testimony was prepared by other people to falsely accuse the client.
Sometimes it is possible to determine that the child has a history for raising false testimony or slander.
The accuser confuses the accused
It is probable that the minor is telling the truth but is confused when identifying the author of the crime. This can happen if:
- The accused is unknown to the minor.
- Contact with the minor was in a dark or unknown place.
- The minor is very small and does not remember the offender’s face well.
- The perpetrator of the crime is of a different race than the accused.
It was accidental contact
In the case of lewd acts with a child the intent of the accused must be proven. Either to touch the minor, or for the child to touch another person or to touch himself. The accused may have had contact with the minor but was not deliberate.
When the contact is accidental, the accused must be acquitted of the charges brought by the prosecution.
There was no intention to seek excitement
According to California law, for there to be a crime, contact must be made for a sexual purpose. When there is no intention of seeking excitement for oneself or for the minor, child abuse does not occur.
It may happen that a babysitter when she is changing a child in her care has a bodily reaction. For example, an erection of the boy’s penis. But the babysitter’s intention was not to excite him but to change her underwear.
The accuser does not meet the age criteria
California Penal Code 288 PC addresses two types of child sexual abuse based on age:
- When the lewd act is against a minor under 14 years of age, and
- The lewd act is with a minor of 14 or 15 years and the accused is at least ten years younger than the accused.
So the person will not be guilty if the minor:
- You are 14 or 15 years old and the accused is at least ten years younger than the accuser.
- You are over 15 years old.
This does not mean that he is acquitted since he can still be accused of other charges provided for in the Penal Code. For example:
- Rape– Penal Code 261.
- Sexual assault – Penal Code 243.4.
The accused had his constitutional rights violated
Not infrequently, the police act excessively against a person accused of sexual crimes. The accused may have been of inappropriate police conduct or an illegal search.
These are typical cases in which the police carry out illegal acts to obtain information or arrest a suspect. With the help of an expert sex crime attorney it is possible to determine excesses and request the case be dismissed.
The police can violate a person’s constitutional rights in many ways during an arrest. This includes:
- Illegal search, arrest and seizure.
- Sow evidence or present false testimony.
- Force a confession from the accused to testify against himself.
Undergo a private polygraph test
Polygraph tests are not performed solely by the police. Also a private investigator can perform them to detect lies or false testimonies. These tests have no evidentiary value in court but give the defense an advantage.
Depending on the result, the evidence may be taken to the prosecutor to consider whether or not to continue with the judicial process. A defendant who passes the polygraph test gives the defense more arguments and elements of conviction.
Knowing that the accused is innocent, the defense will prepare and present a stronger defense strategy.
Mitigation and probation
When the prosecutor’s evidence is irrefutable or the client has confessed the crime to the police, the defense strategy changes. It is not argued that the events did not occur but could have been the result of an isolated incident.
If the person does not have a criminal record as a sex offender or has committed any other crime, procedural benefits are sought. These include probation that sometimes requires paying a year in prison in a county jail.
Other times the sentence does not establish jail time for the client.
Some of the following crimes may have common elements with the violation of Penal Code 288 (a) PC.
- Continuous sexual abuse – CCP §288.5 (a)
- Display or send material to seduce a minor – CPC 288.2 (a) (1).
- Contacting the child with the intention of committing certain serious crimes – CPC 288.3 (a).
- Organizing meetings with a child with lewd motives – CPC 288.4 (a) (1).
- Oral intercourse with a minor – CPC §§288a (a) and (b) (1).
- Engaging in sexual intercourse or sodomy with a child under the age of 10 or younger – CPC 288.7 (a).
- Distribute obscene material (child pornography) – CPC 311.1 (a).
- Sexual Assault – CPC 243.4 (a).
- Kidnapping – CPC §207 (b).
- Annoying or teasing a minor – CPC 647.6 (a) (1).
Legal deadline to report lascivious acts to a minor
According to Penal Code 801.1, people who have been victims of this crime can sue before turning 40. This statute of limitations applies to those cases that occurred after January 1, 2015.
If your case was prior to 2015, you should discuss it with your Los Angeles sex crime attorney. Any California sex crime charge can be prosecuted years after it has occurred.
Can a minor be convicted of violating PC 288?
Yes, If it is shown that the minor deliberately violated Penal Code 288 PC. The prosecution must prove that the accused minor was aware that he was committing a crime. Furthermore, he intended to become sexually aroused either himself or someone else.
What if the minor lies in a child abuse case?
Although the minor’s testimony prevails as true evidence for the prosecutor and jurors, he could be lying. There are not a few cases of false testimonies of minors falsely accusing older people of sexual abuse.
A child could act like this to get revenge on a teacher who put him off a subject at school. Likewise to raise a false testimony against a coach for having sat them on the bench.
Parents who force their children to lie to get revenge on their partner or win a lawsuit are also frequent. Therefore, the experience of the lawyer in these cases is crucial, to detect if the child is lying or not.
When it is detected that the minor has lied, justice could reprimand him as well.
Is being deceived by the victim regarding his age a defense?
No. Deception or age errors are inexcusable in these cases. Remember that the victim’s consent cannot be argued as a defense. Nor that she lied about her age saying she was over 18 years old.
California law is clear in this regard. A defendant will be convicted if a sex offense with minors is determined regardless of the circumstances or mode.
What can Lluis Law do for you?
In our firm we have successfully defended hundreds of people who have been accused of this and other crimes. You must remember that an accusation does not mean that you will be convicted, because the prosecution must first prove the charges.
At Lluis Law we are known for offering our clients solid defense strategies. We offer you a free consultation where we can study your case and explain your rights and legal options.
A charge for child abuse is very serious and requires specialized professionals who can understand you.
If you have been accused of lewd acts with a minor and want to be defended by the best criminal lawyers in Los Angeles, call now. We can help you!