California’s law prohibits you from engaging in any lascivious or lewd act against a minor. Most people fail to understand that when they take part in an indecent act or any act that is sexual with a minor, they commit child molestation, which is a felony charge in California.
The law will punish you whether you committed the act knowingly or unknowingly, and you may end up spending up to nine years in state prison. Facing charges of lewd acts with a minor will impact your professional and personal life. The first step when you meet these charges is to hire the services of a criminal defense attorney who will walk with you throughout the entire court process.
At The Law Offices of Fountain & Hattersley, we will help defend you against these charges and obtain the best possible case outcome. Contact us if facing lewd acts with minor charges in Pasadena.
Legal Definition of Lewd Acts Against a Minor
California PC 288 will charge any person who willfully commits any acts that are sexual or that are lewd against a minor who is aged 14 years with the intent of gratifying their sexual desires, arousing the child, or the offender. A conviction will lead to state imprisonment.
Elements of Lewd Acts with Minor under Penal Code 288
Under Penal Code 288(a), the prosecution will have to prove the following facts for a charge of lewd acts against a minor aged below 14 years to hold in court:
- You intentionally and lasciviously touched any part of a minor’s body or intentionally made the minor touch themselves, touch any part of your body, or that of someone else.
- You intended to arouse, gratify your lust and passion sexually, or arouse and gratify the sexual desires of the minor.
- The explanation that both parties give for the touching.
- The offender commits these acts against the little one while they are below age 14.
- The circumstances surrounding the touching.
Under PC 288(b), the prosecution must prove the following elements for a charge of lascivious or Lewd acts against a minor by use of threat, force, coercion, fear, or duress:
- You used fear, coercion, intimidation, or force to willfully and lewdly touch a minor’s body, or you made the child feel you or another person for sexual gratification.
- By applying force, fear, threat, or intimidation, you willfully acted lewdly, intending to arouse a minor—yourself or another person sexually.
- These lewd acts were against a child aged below 14 years.
Under Penal Code288.5, the prosecution must prove the following elements for a charge of continuous Sexual abuse of a minor to hold in court:
- You violated the child multiple times within three months.
- You had easy access to the child for those three months.
- The child is aged 14 years and below.
- The minor and the offender knew each other.
Lewd or a Lascivious Act Against a Child
When you face charges for lewd acts against a minor, it involves touching or fondling a minor’s sexual organs or the actual act of molesting the child. There are some instances where you could face lewd acts against a minor even if:
- You did not touch the child’s sexual organs.
- You made the child touch themselves rather than doing so yourself.
- You did not touch the child’s bare skin but instead touched them over their clothing.
You should always note that your intention while touching or causing the minor to touch themselves is what makes touching a crime. Even if no arousal takes place for you or the little, the fact that you intended it to happen makes the act a crime.
You Acted Willfully
Acting willfully means that you committed the crime on purpose, and it does not necessarily mean that you intended to break the law, have an advantage over your victim, or cause harm to your victim. This means that if you accidentally touched the child, you cannot face lewd acts charges against a minor even if you touched the minor’s sexual organs under Penal Code 288.
What does Touching Mean under PC 288?
Under PC 288, touching a minor means that you handled the minor’s body, made someone else touch the little, or made the child touch someone else. The touching can be over the child’s clothing and not necessarily on their bare skin.
Use of Fear
This means that you accomplished the lewd act by instilling fear when the victim is afraid and taking advantage of the child’s fear.
Application of Duress
When the term under duress is used, it means that several circumstances are surrounding the crime. The victim may face threats that threaten to cause them or someone else severe bodily injury, a threat to their family and friends if they report the molestation, or the offender physically controls them.
For a jury to determine if the offender used duress, they consider the victim’s age, the relationship between the minor and the offender, where the act took place, and the difference in size between the offender and the minor.
Penalties for Lewd or Lascivious Acts against a Minor
When passing sentence, a judge will consider the following facts:
- The age of the child at the time of the crime
- If there is any pattern to the lascivious act,
- The age of the offender
- The means through which you carried the offense out.
Penalties for Lascivious Acts with a Child under 14 years
Under Penal Code 288(a), a conviction for committing lascivious acts against a minor aged below 14 years is a felony offense that will lead to imprisonment in state prison for up to eight years, formal probation, or payment of fines that do not exceed $10,000.
Penalties for Lascivious or Lewd Acts with a Minor Using Fear, Duress, Threat, or Violence
Under Penal Code 288(b), a conviction for committing lascivious or lewd acts against a minor by using force, fear, threat, intimidation, or coercion is a felony offense. Possible penalties include imprisonment in state prison for a period ranging from five up to ten years and a fine that does not exceed $10,000. If the victim obtains severe bodily injury, you may receive a life imprisonment sentence. This crime does not allow for probation, which means you will have to serve your entire sentence.
Penalties for Lascivious or Lewd Acts with a Minor aged 14 or 15 years
When you face charges for committing a crime, a lewd act against a minor aged between 14 and 15 years, and you are older by at least ten years than the minor, the court will charge you under Penal Code 288(c). The prosecution can charge this charge as a wobbler, meaning that you can face either a felony or misdemeanor charge depending on the nature of the case.
When the prosecution charges you with misdemeanor charges, a conviction will carry a one-year sentence in county jail or pay a fine of $1,000. In contrast, a felony charge carries a prison sentence in state prison of up to three years.
Penalties for Continuous Sexual Violation of a Child
California treats continuous sexual molestation of a child as a severe offense and convicts the charge as a felony offense under Penal Code 288.5. A conviction for this crime will result in imprisonment in state prison for a period that ranges from six up to 16 years.
You should note that regardless of your charge under Penal Code 288, your sentence will require you to register as a sex offender under Penal Code 290. This registration is a serious one since it stands for life. If you fail to register as a sex offender, you will face charges and receive a conviction of up to three years in state prison.
Child Molestation by Force is a Strike offense in California
When you receive a child molestation conviction in California for committing a lewd act by use of force, or duress, you obtain a strike against your record.
Statute of Limitations for Penal Code 288
A statute of limitation is the time limit where a victim can level charges against you. This statute is to ensure that the victim reports the crime on time and to avoid reporting the crime several years later, which would make it difficult for the offender to defend themselves due to:
- The physical evidence required in a sex crime may have been lost,
- Key witnesses may be critically ill, dead, or untraceable.
- It may be difficult for the offender to remember facts regarding the alleged crime they are accused of committing.
According to the statute of limitations, a lascivious act with a minor charge must be made within ten years of the victim’s 18th birthday. The statute of limitation will expire once the alleged victim turns 28 years.
In California, the law allows the victim to file charges within a year from the time the crime was reported to the police. This does not, however, put into consideration the time when the crime took place. For this exception to work, the following elements must apply; the sex involved was substantial when the crime was committed, and there is enough evidence that supports the victim’s claim.
Substantial sex means actual oral sex, vaginal or anal penetration involved when the offender committed the crime.
Possible Defenses against Lewd Acts with A Minor
When you face lewd acts against a minor, there are several defenses that you can apply. With your criminal defense attorney, you can develop one of the following defenses against the charges leveled against you.
Sometimes you can face child molestation charges because the child may be confused about the person who molested them, especially where the offender was someone the child did not know. The victim was too young; the offender was from a different ethnic group or race if the molestation occurred in an unfamiliar or dark spot.
You need to hire a defense team with experience in investigative work to look into the crime’s circumstances and facts.
False Accusation by the Child
Sometimes a child may lie, and you will need to have a strong defense team in your corner to ensure the child is credible, and this happens where there is no physical corroboration. Your defense team will investigate and interview the minor’s family, schoolmates, and friends, obtain medical, school records of the minor, and at the same time conduct a background check on the minor together with any witness they may have.
The Accused Did Not Intend to Arouse the Minor
For a penal code 288 charges to hold, the prosecution must prove that you touched the child with the intent of arousing them. Your defense team will have to prove that your intention was not to stimulate the minor sexually.
It was Accidental Touching
For a Penal Code 288 to hold, you must have willfully touched the minor, caused the little to touch someone else to obtain sexual gratification or arousal for you, the other person, or the minor. If you can prove you did not intentionally touch the minor for these reasons, then the court will find you not guilty of the crime against you.
You were a Victim of Police Misconduct
Suppose the police use illegal means to obtain evidence against you in a Penal code 288 crime charge. There are several ways in which law enforcement officials can violate your rights while dealing with a child molestation charge, crime circumstances, and facts like performing illegal searches, forcing your confession, planting evidence, among others.
In California, several sex offenses accompany a child molestation charge. Some of these include:
Child Pornography (California PC 311)
California law defines child pornography as any material that depicts acts of sexual conduct by a minor aged below 18 years. Under PC 311, it is an offense to possess, transport, exchange, print, advertise, or send child pornography. The law will find you guilty when you persuade or force a child to participate in pornography.
Penalties for Child Pornography
Child pornography is a wobbler offense, and the prosecution may decide to try the case as a misdemeanor offense, and this will receive a one-year prison sentence in county jail or the payment of up to $2,000 in fines. When the case is a felony offense, a conviction will gain imprisonment in state prison for a period that ranges from 16 months up to eight years, payment of fines that goes up to $100,000.
Sending Harmful Material with the intent of Seducing the Minor (PC 288.2)
If you send harmful material to a minor willfully to arouse the little or yourself, you will have committed an offense and face charges under PC 288.2. This is a wobbler offense, and the prosecution will charge you accordingly.
Kidnapping a Minor (PC 207)
This offense occurs when a person moves a minor some substantial distance without the minor’s consent by applying threats, force, fear, or coercion. A conviction could lead to 11 years in state prison.
Making a Minor Commit a Crime (PC 288.3)
Under Penal Code 288.3, it is a crime to contact a child through telephone, email, or other means to commit a crime. The offense can be kidnapping, posing for child pornography, sodomy, among others. A conviction for this crime will lead to a three-year jail term in state prison with the possibility of registering as a sex offender.
Sex with a Minor Aged Less than ten years
It is an offense to have sex with a child aged less than ten years under Penal Code 288.7. Sex with a child under the age of ten is a felony offense, and a conviction could lead to a minimum of 25 years in state prison or life imprisonment for any sodomy or sexual intercourse. When oral copulation occurs, a conviction will lead to a minimum sentence of 15 years in state prison or life imprisonment.
Sexual Battery (Penal Code 243.4)
The sexual battery occurs when a minor is aged between 16 and 17 years, and the law cannot try the offense as a lewd act against a minor since the offense is against children who are 14 years and below. A sexual battery charge can also be brought against an offender whose age difference with the minor is less than ten years, even if the victim is a minor aged 14 or 15 years when the offense took place.
Sexual battery is a wobbler charge, and the prosecution can try it as a misdemeanor or felony offense. A misdemeanor charge will carry a sentence that will require the offender to register as a sex offender in California for ten years, while a felony conviction requires the offender to register as a sex offender in California for life.
Serious Sexual Assault of a Minor (Penal Code 269)
You will face the serious sexual assault of a minor under Penal Code 269 when you commit the following crimes against a child aged below 14 years, and the child in question is seven years or younger than you. These crimes include but not limited to:
- Sexual penetration,
- Oral copulation.
Committing a serious sexual assault on a minor is a felony offense that leads to imprisonment in state prison for a period ranging from 15 years to a life sentence. Upon conviction, the offender must register as a lifetime sex offender in California.
Oral Copulation (Penal Code 287)
Under Penal Code 287, it is a crime to take part in oral copulation with a minor. When facing oral copulation charges, your sentence will depend on the following:
- The minor’s age,
- The difference in age between you and the minor,
- if you used force, threat, or coercion to commit the crime.
When the victim is a minor aged below 14 years, your penalty will be imprisonment in state prison for a period ranging from three to twelve years.
Arranging to Meet with a Minor for Sexual Purposes (Penal Code 288.4)
You will be guilty under Penal Code 288.4 when arranging to meet with a minor to perform a sexual offense. The mere act of setting the meeting is a wobbler offense, and a misdemeanor charge will lead to three years in state prison. If the minor attends the meeting, the crime is a felony with imprisonment in state prison for four years.
Child Molestation for a Minor aged Below 18 (Penal code 647.6)
You will face charges under Penal Code 647.6 when your actions annoy or irritate a minor aged below 18 and when your actions show that you have a specific nature of the offense sexual interest in a minor. You will also violate Penal Code 647.6 when you perform lewd behavior like masturbation in a place where a minor might observe you knowingly or when you use foul language in the presence of children. If you are a first-time offender, your charge will be a misdemeanor, but it will be a felony receiving harsher punishment for repeat offenses.
Sodomy (Penal Code 286)
This crime involves contact between the offender’s penis and the minor’s anus, the level of penetration does not matter when it comes to a sodomy charge. For as long as there is penetration, then there is enough ground for sodomy charges.
A sodomy conviction leads to imprisonment, and both the offender’s and the victim’s age determines the duration of the detention. When sodomy is against a minor aged below 14 years, the sentence will depend on the nature of the act itself. If there is the application of force or fear when carrying out the offense, the offender might spend nine to 13 years in jail. When the offender is older than the victim by ten years, the sentence will lead to eight years in prison.
Contact a Criminal Defense Attorney Near Me
When you face charges of lewd acts with minor charges, which are among the most severe charges in California, you will need to take the necessary steps to fight for your rights. California has some of the harshest penalties for sex crimes, and you could be facing an extended stay in prison and sometimes even life imprisonment.
You should retain the services of an experienced criminal defense attorney who will work hard to defend you against these charges. You may face these charges due to false accusations, mistaken identity, among others, and for these reasons, you need a defense lawyer. At The Law Offices of Fountain & Hattersley, our criminal defense attorneys who have years of experience handling sex crimes will provide you with the best defense. Call us at 626-793-4111 for consultation on your case.