Lewd Acts on a Child

Penal Code 288(a) of the California laws considers acts such as willfully touching a child or causing a child to touch his/her body for sexual reasons as "lewd acts on a child." The act also involves willfully leading a child to touch another person's body or your body. The law applies to victims below the age of 16 years. PC 288 doesn’t consider any accidental lewd acts with a child as sexual offenses.

To be charged with this offense, the prosecutors must find proof that the offender touched the child. The act of touching may occur on the child’s bare skin, body part or child’s clothing. Touching doesn't necessarily involve actual arousal. The defendant may use the act as a means of satisfying a sexual desire or causing arousal.

Penal Code 288(b)(1) highlights that it's unlawful to accomplish lewd acts on a child by threats, menace, duress, violence, and fear. Offenders risk criminal prosecution if the applied force aims at helping them commit a sexual offense. They also risk conviction if the child was in fear at the time the crime took place. Both duress and menace indicate that the act aimed at injuring a victim under California laws.

Punitive measures highlighted under PC 288 apply to offenders depending on certain factors. They include the offender’s criminal record and the child’s age. Use of threats, duress, violence, and force also determines the penalties you may face for this crime.

Lewd acts on a child under 14 years are considered as felony charges when the offender didn't use any force. Under PC 288(a), the punishment for this felony includes a maximum fine of $10,000 and three to eight-year imprisonment in state prison. The judge may grant you probation with a one-year county jail sentencing when found guilty. The crime still qualifies as a felony sex crime even if you don’t go to prison.

Penal Code 288(b)(1) states that it’s unlawful to execute lewd acts on a child under the age of 14 by threats, violence, duress or force. You’ll pay a fine not exceeding $10,000 or serve five to eight years locked up in state prison. PC 288(b)(1) also mandates California courts to sentence offenders to prison without granting them probation.

Penal Codes 12022.8, 288(i) and 667.61(d)(7) highlight the penalties for PC 288 offenses that lead to bodily harm. You may face 5-year imprisonment for inflicting great bodily injury to the victim under PC 12022.8. You may also face life imprisonment for causing bodily harm to victims below 14 years as stipulated in PC 288(i). Penal Code 667.61(d)(7) recommends a 25-year to a life prison sentence for bodily harm inflicted on victims below 14 years.

“Great bodily injury” and “bodily harm” can be defined as any significant form of physical injury under Penal Codes 12022.8, 288(i) and 667.61(d)(7). The prosecution team may build your case using any of these instances. You may also serve an extra five years for inflicting physical injury during lewd acts.

Penal Code 288(c)(1) suggests that it's a crime to initiate lewd acts against children aged 14 or 15 years if the age gap between you and the victim is at least ten years. Such an offense qualifies as a wobbler (an offense charged as either a felony or misdemeanor) in California. The prosecution team will rely on your criminal record and facts relating to the case to develop allegations against you.

Punishment for a PC 288(c)(1) misdemeanor includes one-year sentencing in county jail. The law also requires you to sign up as a sex offender. Punishment for a PC 288(c)(1) felony include felony probation (with a one-year county jail sentencing) and a 16-month to 3-year imprisonment in a state correctional facility.

Lewd acts on a 16 or 17-year old qualify as sexual battery under Penal Code 243.4(a) or statutory rape under Penal Code 261.5. California courts handle sexual battery and statutory rape crimes as either misdemeanors or felonies. PC 243.4(a) and PC 261.5 misdemeanors are punishable by up to one-year imprisonment in county jail with up to $2,000 in fines. Felony penalties for both crimes may attract a 5-year or life imprisonment in a state facility.

You might face a 25-year or life sentencing in state prison if you had a prior sexual offense conviction in your criminal record under PC 288. The prosecutors may also charge you as a habitual sexual offender under PC 667.71(b) with penalties including a 25-year of life prison sentencing. Such a crime qualifies as a felony as stated in PC 667.71(a).

PC 288 crimes are punishable by collateral actions besides payment of fines and incarceration. The collateral consequences may include compensating the victim, registering as a sexual offender and losing your professional license. Megan’s Law on sex offender registry outlines the requirements for mandatory sexual offender registration.

The current sex offender registry law states that the registration period will depend on the intensity of the crime beginning on 1^st January 2021. First-time offenders will have to register for 20 years or more and be classified under Tier 2 of the sex registry. Offenders facing severe sex charges register as sex offenders for life under Tier 3.

The jury usually considers the context and nature in which the defendant committed the lewd acts. Intent can also manifest from the fact that the offender and the victim knew each other. Your criminal charges may depend on how the prosecutors use these factors to prove your intention to commit the lewd acts.

Police departments invest lots of resources and time to investigate offenses related to child molestation. Most law enforcement agencies operating in California have special units or divisions focused on sexual crimes including lewd acts on children. They usually equip detectives with knowledge in forensic science and handling the victims. The investigation procedure for PC 288 crimes is as follows:

1. Receipt of an Incident Report

PC 288 cases start with the plaintiff pressing charges on the alleged abuse. Most cases involve the child approaching an adult (teacher, school counselor or relative) to help report the matter to the police. The police department is expected to receive this report before commencing investigations.

2. Interviewing the Accuser

Police officers tend to ask the victim for further details on the reported sexual offense. Such interviews should be conducted by detectives experienced in sexual crimes or child psychologists. The accuser's responses help build a case against the offender.

3. Medical Examination and Thorough Forensic Analysis

Medical exams and forensic analyses help prove that the accuser was sexually assaulted or touched inappropriately. The medical examiner conducts these tests on the victim's clothes and body and the crime scene. DNA evidence such as hair, saliva, and semen can help link the offender to the crime.

4. Interrogating the Suspect

Police officers use interrogation as a means to get a confession from you. They can interview you outside the station or inside the station/jail. They may show up at your home or workplace pretending to be on your side for you to plead guilty to the charges.

Expect the police to make a pretext call as a way of getting you to confess to your lewd acts. In the pretext call, the victim will be guided by the police to persuade you to admit your mistakes. Note that the officers will record the conversation and use it to interrogate you once arrested.

If the suspect has a history of defiling children, the law enforcement officers may search for and interview other victims. Prosecutors may use these children as witnesses against you. They can also ask the court to increase your sentencing if the other victims decide to press charges.

California courts are very strict on sexual offenses including lewd acts on children. Your criminal record, the nature of the case and the victim's physical state can determine the type of legal defense to use. Get a criminal attorney to assess these circumstances and use the following defense strategies.

1. The Victim Doesn’t Fit PC 288 Age Criteria

Penal Code 288 outlines two types of sexual offenses against children. They include conducting lewd acts on a child that's 14 or 15 years old while your age exceeds that of the victim by ten years. The second type involves performing lewd acts on a child that is below the age of 14 years.

PC 288 won’t find you guilty if the victim is older than 15 years. The law won’t also apply to your case if the child is 14/15 years and you’re less than ten years older than him/her. The prosecutors may still charge you for violating crimes such as a sexual battery (PC 243.4) and statutory rape (PC 261).

2. Private Polygraph Examinations

You can agree to take a lie detector test administered by a private polygrapher to prove your innocence in a PC 288 case. Your lawyer can use the test results to convince the DA (district attorney) to drop your charges if the examination shows you were truthful. Note that polygraph results aren’t admissible in a California court.

3. You Didn’t Intend to Arouse the Victim or Yourself

Penal Code 288 specifies that lewd acts on a child should be aimed at sexual arousal for an offender to be guilty. Your lawyer may suggest that you had no intention to arouse yourself or the child. Your case wouldn't be treated as child molestation if there wasn't any arousal intent.

4. Illegal Search and Police Misconduct

Police officers usually employ vigorous means to find evidence linking you to any sexual offense in California. The California Evidence Code prohibits them from violating your constitutional rights in the process of obtaining evidence. A prosecutor or police officer may violate your rights through entrapment, coerced confession or illegal seizure/search.

5. The Victim Gave False Claims

Prosecutors heavily rely on the victim's comments about a sexual offense incident to charge you. Your attorney can run background checks on the child and any related witnesses. The expert can also interview the child's schoolmates, friends, and relatives. Subpoenaing the plaintiff's medical records, social media accounts, and counseling reports can help prove that the victim made false claims against you.

6. Accidental Touching

Your charges can only be prosecuted under Penal Code 288 if you willfully touched the child. PC 288 will also apply to your case if you willfully caused the child to touch his/her body, your body or someone else’s body. A California court may find you innocent or drop your charges if the act of touching was accidental.

7. Mistaken Identity

The victim may wrongfully identify you as the perpetrator of the lewd acts. Such a circumstance can occur if the child is very young or the actual perpetrator is unknown to the child. Mistaken identity situations are common when the incident happened in an unfamiliar or dark place.

Your attorney can succeed in negotiating for lesser charges or ask the court to set you free. Depending on the facts/evidence related to your case, prosecutors can ask the court to convict you for other crimes. For a PC 288 case, these related crimes include:

Penal Code 647 considers the act of molesting or annoying a child under the age of 18 years as a crime. Your case will be based on your interests to engage in sex, irritate or disturb the victim. You don’t need to be in contact with the child for these charges to apply. Use of inappropriate language or gestures may trigger conviction for this crime.

Persuading, enticing or luring a child to follow you to a specific location with the intent to conduct lewd acts on him/her is a crime under PC 207. Such an offense qualifies as kidnapping. Penalties include a five-year to eleven-year imprisonment in a state correctional center.

Sexual battery can be defined as the act of touching someone else’s intimate organs without their permission for abuse, gratification or sexual arousal. Penal Code 243.4, which is California’s sexual battery law, doesn’t stipulate an age limit for this offense. PC 243.4 also considers this crime as either a felony or a misdemeanor.

Penal Code 288.7 considers any sexual act with a child below the age of 10 as an offense. Penalties for an oral copulation act include a 15-year or life imprisonment. For sodomy or sexual intercourse, the sentencing ranges from 25 years to life in a state correctional facility.

Such an offense involves conducting three or more lewd acts on a child below the age of 14 years for three months or more. The offense is punishable under Penal Code 288.5. Prison sentencing for this crime ranges from six to sixteen years.

Arranging to meet with a child to conduct lewd acts on him/her is considered as a sexual offense under Penal Code 288.4. Police officers can retrieve a snippet of the conversations you had with the victim online or via text. As a misdemeanor, this crime attracts up to 3 years in a state corrections center. The punishment for a PC 288.4 felony includes 4-year sentencing in a state corrections facility.

Harmful matter, in this context, includes images, videos or text messages revealing strong sexual content. Penal Code 288.2 highlights that it’s illegal to send such material to a minor with intent to seduce him/her. The crime is usually convicted as a felony or misdemeanor.

The outcomes of your PC 288 case largely depends on your lawyer’s defenses and your cooperation. We at Vista Criminal are willing to assist you to demonstrate your innocence when charged for committing lewd acts on a minor. We serve all of North County through our office in Vista, California. Allow us to give you or your loved one the best legal representation by contacting our Vista criminal lawyer at 760-691-1551.