Penal Code 288 Lewd or Lascivious Acts with a Minor
California Penal Code 288 - Lewd or Lascivious Acts with a Minor under
California Penal Code 288 states that it is illegal to engage in lewd or lascivious acts with a minor. Lewd or Lascivious acts refer to acts that are indecent and for the purpose of sexual arousal or gratification. This charge is also commonly referred to as “child molestation”.
Penal Code 288(a) - Lewd or Lascivious Acts with a Minor under 14
Child molestation is a serious offense that can have life-altering consequences – both personally and professionally. California Penal Code section 288 (a) (“PC 288a”) is the statute that defines the crime and penalties of lewd or lascivious acts upon a minor who is under the age of 14.
You will be accused of violating Penal Code 288 (a) if the prosecution can prove beyond a reasonable doubt, that:
1a. You lewdly touched a child’s body, either through the child’s clothes or bare skin
OR
1b: You caused the child to touch his or her body, your body, or someone else’s body either through clothes or bare skin.
AND
2. You willfully committed the act with the intention of sexual arousal.
3. The child was under the age of 14 at the time of the act.
This means that at a trial, if the jury finds any reasonable doubt that the touching did not happen or that the defendant did not commit the act with the intention sexual arousal, then the defendant will be found “not guilty”. You will also be found “not guilty” of this charge if the accuser is not under the age of 14. However, it is possible that the defendant be charged with a different sex crime, such as statutory rape [web link] or sexual battery [web link], if this is the only defense. Also, the prosecution must prove that the defendant acted willfully, so if there is any reasonable doubt as to this element, it should also result in a “not guilty” verdict.
Generally, a lewd or lascivious act involving minors refers to PC 288(a). However, there are other subsections of PC 288 that outlines different forms of lewd or lascivious acts against minors. The penalties of these two subsections vary from PC 288(a). These subsections include PC 288 (b) and PC 288 (c).
Penal Code 288 (b)(1) – Lewd or Lascivious Acts with a Minor under 14 by Force or Fear
A charge of lewd or lascivious acts with a minor can become more serious when there is force used to accomplish the act. Being that it is a more serious offense, there are harsher penalties attached when force is used. In order to be accused of violating Penal Code 288 (b), the prosecution must prove, beyond a reasonable doubt, that:
1. All elements necessary for a conviction of PC 288(a) occurred AND,
2. You used force, the fear of violence, or any threat to commit the act.
Since a lewd or lascivious act requires touching, the act inherently requires force. Therefore, force in this situation refers to force outside of what is required to commit the act. For instance, if the defendant hits the minor before touching him or her, the defendant would be accused of violation PC 288 (b), because there was additional force involved.
No. Force does not actually have to be physical violence. Verbal threats would also be considered the use of force, because it would cause the minor to fear the threat of violence if he or she did not comply.
Penal Code 288 (c): Lewd or Lascivious Acts with a Child who is 14 or 15 years old
Engaging in a lewd or lascivious act with a child who is 14 or 15 years of age is a crime under California PC 288(c). If you are 10 years older than the minor at the time of committing the crime, this offense carries a lighter sentence than PC 288 (a)
Unlike PC 288(a) and PC 288(b), the age of the defendant is taken into consideration when accused of violating PC 288(c). The defendant must be 10 years older than the minor to be found guilty of PC 288(c).
“Willful” defined.
For an action to be willful means that the act was done purposefully. It does not matter whether the defendant meant to target the alleged victim specifically. All that matters is that the defendant’s underlying action was, itself, done on purpose, and not the result of involuntary movement.
Intention of sexual arousal and gratification
The prosecution only needs to prove that the defendant’s intention for the touching was for sexual arousal or for sexual purposes, so they do not need to prove that the defendant actually achieved sexual arousal. Also the optics of the situation do not matter, just the intention. Even if the defendant did not touch the genital area of the other person, the touching can still be considered lewd and lascivious if the intention was sexual.
Penalties for Violating California’s Lewd and Lascivious with a Minor in California
Lewd or lascivious acts with a minor under 14 is a felony in California. A conviction for PC 288 (a) is punishable by:
- Incarceration in state prison for three (3), six (6), or eight (8) years
- A fine of $10,000, or
- Both
- Tier three (3) Sex offender registration [web link]
The court may choose to do this based on the circumstances of the case and the defendant’s lack of criminal history, and evidence that will lead the court to believe that the defendant will not be a threat in the future and therefore should not receive prison time. Conditions of probation may sometimes include spending no more than one (1) year in county jail.
A charge of lewd or lascivious acts with a minor can become more serious when there is force used to accomplish the act. Because of the nature of the offense, there are harsher penalties attached when force is used. A conviction for PC 288(b) is punishable by:
- Incarceration for five (5), eight (8), or ten (10) years
- A fine of $10,000
- Both
- Tier three (3) Sex offender registration
It should be noted that these penalties are imposed upon defendants who are found guilty of committing lewd acts on dependent people, such as the elderly or disabled.
Under PC 288(c), a lewd or lascivious act with a minor between 14 and 15 is a “wobbler” offense in California. This means it could be charged as either a misdemeanor or felony.
A conviction for PC 288 (c) as a misdemeanor is punishable by:
- No more than one (1) year in county jail
- A fine of up to one thousand (1,000) dollars
- Or both
- Tier three (3) sex offender registration
A conviction for PC 288 (c) as a felony is punishable by:
- Incarceration of one (1), two (2), or three (3) years
- A fine of up to ten thousand (10,000) dollars
- Both
- Tier three (3) sex offender registration
Sex Offender registry in California
A conviction for lewd and lascivious acts with a minor may requires you to register as a sex offender in California. California’s sex offender registry has three tiers, which require different lengths of registration. Learn more about California’s sex offender registry here. [web link]
Tier 3: High-level offenders—Life registration. This encompasses a felony conviction where the sexual act was done by force.
Possible defenses to a charge of Lewd and Lascivious Acts with a minor in California
As with most criminal cases, the defense can argue that the crime never occurred, or that if it did occur, the defendant was not the perpetrator. The defense will often argue that the charge was fabricated if there was no confession to the charge or if there is no physical evidence that corroborates the crime taking place.
Ultimately, this defense questions the credibility of the accuser. A well-versed attorney can accomplish this through various methods that attack the credibility of the alleged victim, such as delivering an effective cross-examination in court that reveals any internal inconsistencies with a witness’ story.
Even if there is evidence that the crime did occur, the defense can argue that the accuser or witness has mistakenly identified the defendant as the perpetrator. This defense may be effective if the circumstances of the case make it unclear who the actual perpetrator was. For instance, the accuser may be too young to accurately identify the perpetrator, or the crime may have taken place in a place or time of day where the accuser or potential witness could not accurately identify the perpetrator. This defense will therefore use these circumstances to show that the defendant is “not guilty”.
In order to be found guilty of violating PC 288, it must be proven that the act was willful and intended for sexual arousal or gratification. If this element cannot be proven, beyond a reasonable doubt, then the defendant cannot be found guilty. Consider the following example:
A wrestling coach, demonstrates a move on a wrestler and accidentally touches the wrestler’s private area. The act was accidental and not intended for sexual purposes, therefore the coach will not be found guilty of violating PC 288.
There are instances where the touching is willful but not intended for sexual purposes. For example, a parent touches a child’s private area to examine an injury or rash. This action clearly has not sexual purpose and the parent would not be found guilty.
Even when conducting investigations into serious sex crimes such as this one, law enforcement must respect the defendant’s constitutional rights and take proper legal steps when conducting a search, gathering evidence, or trying to obtain a confession. Failure to do so may result in the suppression of evidence.
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