Children are vulnerable to molestation due to their trusting and naïve nature. That's why California has strict laws to punish anyone found guilty of child molestation. A conviction for lewd acts with a child carries severe consequences that can have lasting effects on your life. It's imperative to seek legal help once you face charges. Contact and schedule an appointment with the California Criminal Lawyer Group in Sacramento today, and we will review your situation and advise you on the best defense option.

How California Laws Define Lewd Act with a Minor

California Penal Code 288(a) is the statute that defines lewd acts with a minor in California. This statute defines lewd act with a minor as:

  • Lascivious or lewd acts.
  • Made on a child who's below 14 years.
  • To arouse yourself or gratify yourself sexually, the child, or another person.

You can commit a lascivious or lewd act in the following way:

  • Touching any part of a child's body willfully, or
  • Causing the child to touch their body, your body, or another person's body.

Here is an example that explains this scenario much better:

 Jane is Alex's and Brenda's babysitter. She orders Alex to touch Brenda's vagina. Even though there's no contact between Jane and these two children, she still commits a lewd act by ordering Alex to touch her sister's vagina.

Below is a closer look at some common phrases and terms that arise in the definition above.

Definition of Willfully

Your action is regarded as willful if they were committed on purpose. Therefore, it doesn't necessarily mean that you intend to gain any advantage, harm another person, or break the law with your actions.

Therefore, an accidental contact of a child's sexual organ doesn't suffice as a lewd act. Below is an example that will help you understand this much better:

Albert is the 7th-grade wrestling coach at Peter's school. He accidentally touches Peter's penis, who's 12 years old, while showing him something related to wrestling. In this situation, Albert isn't innocent of lewd acts with the child since the contact on Peter's penis was accidental.

Definition of Touching

A defendant must touch a child's body part to violate Penal Code 288(a). Under this statute, touching doesn't necessarily have to be on the child's bare skin or sexual organ. It can be done on any body part and made using bare skin or through the child's clothing.

You should also understand that "touching" in this context doesn't necessarily require actual arousal. What's important is that the touching was purposed and intended to arouse or satisfy your sexual desires. Look at the following example for a clear understanding of this concept.

Anthony is sexually attracted to his seven years old stepdaughter Jane. He massages Jane's feet through her socks as a means of gratifying his sexual desire. Although this doesn't involve touching Jane's bare skin, Anthony can still be charged and convicted of lewd acts with a minor. The purpose of his touching was to arouse himself, which serves as a lewd act.

Definition of Lewd or Lascivious Act Accomplished by Force or Fear

Penal Code 288(b)(1) has a different lewd act with a minor. Under this statute, a defendant accomplishes the lewd action by violence, duress, menace, force, or threats. Here is a closer look at these terms.

Definition of Force

Under Penal Code 288(b)(1), a defendant must use substantially greater or different force from unlawful touching. Here is an example that defines the use of force in a lewd act.

Victor gropes Lisa's buttock without her consent. In this situation, Victor violates Penal Code 288(a) since he used force to accomplish his wrongful act.

In a different situation, Victor slaps Lisa and forces him to take off her pants. In this situation, he uses force that's not part of the act. Therefore, he violates Penal Code 288(b)(1) rather than 288(a).

Definition of Fear

A defendant accomplishes lewd acts by fear if the child is reasonably afraid of direct action from the defendant or is unreasonably scared, and the defendant takes advantage of this.

Definition of Duress

Under California Penal Code 288(b)(1), duress refers to the use of implied threats, force, danger, hardship, or retribution that's sufficient enough to cause a person to submit to your demands. 

Duress results from several circumstances such as:

  • Threatening to harm the alleged victim.
  • Physically restraining the alleged victim.
  • Warning that you would harm the child's family.

The jury must take a look at the following when determining whether particular circumstances suffice as duress:

  • The child's age.
  • The child's relationship with the defendant.
  • The difference between the defendant and the child's sizes.
  • The place where the interaction between the defendant and the alleged victim.

Definition of Menace

California laws define menace as any statements, threats, or actions that prove an intent to injure another person. Take a look at this example for a clear understanding of this concept.

Charlie threatens his step-son Andrew that he'll hit his little brother if he doesn't touch his penis. Even though this might be regarded as an idle threat, it suffices as a menace meant to accomplish sexual exploitation. 

How the Prosecution Proves Sexual Intent in Lewd Act with a Minor

Proving "intent" has proven to be a challenging aspect to prove in criminal prosecution. Establishing whether a defendant's actions had a specific intention is a fact that the jury has to decide by taking account of all circumstances related to the case. Some of the factors that the jury can look into are as follows:

  • The context as to which the touching took place.
  • The relationship between the alleged victim and defendant.
  • The nature of the alleged touching.
  • The presence or absence of an innocent explanation.

Here is are a few examples of which courts can uphold a Penal Code 288 conviction include:

  • When a babysitter rubs the thigh, lower back, or stomach of a child as an inference of arousing her sexual desires.
  • When an armed stranger pushes the alleged victim to an isolated place and asks her to strip.
  • When a stranger puts his hands on the alleged victim's pants and rubs her crotch.

The Penalties for Lewd Act with a Child in California

The consequences for lewd act with a child depends on the following factors:

  • The child's age.
  • Whether the defendant used force or threats.
  • The defendant's criminal history.

Here is a closer look at the penalties for several possible scenarios of lewd acts with a minor.

Sentences for Lewd Acts with a Child Below 14 Years Where There's No Threats or Force Used

A conviction for a lewd act with a child below 14 years without the use of threats or force is convicted under Penal Code 288(a) and carries the following penalties:

  • Imprisonment for three, six, or eight years.
  • A maximum fine of $10,000.

Alternatively, the judge can grant probation with a maximum of one year of custody in county jail. Under Penal Code 288(a), a conviction still counts as a felony sex crime even when a defendant doesn't spend time in prison.

Penalties for Lewd Act with a Minor Below 14 Years Involving Threats or Force

A defendant can be charged and prosecuted with lewd acts with a minor under Penal Code 288(b)(1) if the criminal act is accomplished through duress, threats, force, or violence.

The potential penalties for this crime include imprisonment for five, eight, or ten years and a maximum fine of $10,000.

You should note that defendants convicted for this crime are ineligible for probation since they must serve time in prison.

Penalties for Lewd Act with a Child Below 14 Years that Results to Bodily injury

A defendant charged with lewd acts with a child below 14 years that results in bodily injury can be punished under several California statutes. These includes:

  • California Penal Code 667.61(d)(7) with 25 years-to-life imprisonment.
  • California Penal Code 288(i) with a life imprisonment sentence.
  • California Penal Code 12022.8 with a sentence enhancement of five years.

Under these statutes, significant bodily injury or bodily harm refers to substantial physical injury. Therefore, the sentence enhancement of five years is applicable along with the first two sentences indicated above.

Penalties for Lewd Acts with a Minor When a Child Was 14 or 15 Years Old

Lewd acts with a minor at least ten years older than the defendant and is either 14 or 15 years is convicted under California Penal Code 288(c)(1). This crime is a wobbler. A misdemeanor carries a maximum of one year of custody in county jail. A defendant must also register as a sex offender even when convicted as a misdemeanor.

A felony for this crime carries the following penalties:

  • Imprisonment for 16 months, two, or three years.
  • Felony probation with a maximum of one year of custody in county jail.

Sentences for Lewd Acts with a Minor Who's 16 or 17

Lewd acts with a minor who's 16 or 17 years are not prosecuted under California Penal Code 288 but under California Penal Code 261.5(Statutory rape) or California Penal Code 243.4(a) (Sexual battery). The penalties that apply under these two statutes are explained in the related crimes section below.

Penalties for Subsequent Lewd Acts with A Minor Under Penal Code 288

Apart from the potential penalties under Penal Code 288, a subsequent conviction requires the defendant to register as a habitual sexual offender. A habitual sexual offender carries 25 years to life imprisonment.

Additional Consequences of a Conviction Under Penal Code 288

A defendant convicted under Penal Code 288 faces other collateral consequences. These further consequences are as follows:

  • Mandatory registration as a sex offender.
  • Victim restitution.
  • Loss of professional license.

Registration as a Sex offender

Anyone convicted for lewd acts with a minor under California Penal Code 288 must register as a sex offender. The judge has no discretion to alleviate the defendant's duty to register. However, an experienced sex crimes attorney can seek a plea bargain for an offense requiring registration.

Previously, defendants convicted of lewd acts with a minor were required to register for a lifetime. However, as of 1st January 2021, registration as a sex offender is divided into three tiers.

A tier-three registration lasts for a lifetime and includes defendants prosecuted for subsequent lewd acts with a minor or a conviction under Penal Code 288(b)(i).

A tier-two registration lasts for twenty years or more. It includes a defendant prosecuted for a first-time offense under Penal Code 288(a).

Suitable Legal Defense Strategies for Charges for Lewd Act with a Child

Your attorney can adopt several ways to defend you against lewd acts with a minor. It's crucial to understand that gaining the child's consent to the criminal act doesn't work as a legal defense strategy. You should also note that your attorney will adopt the legal defense strategies depending on the unique circumstances of your arrest. Below are some of the common legal defense strategies that work in this kind of accusation.

Claim that the Child was Lying

Prosecutors hinge on a child's credibility when convicting a defendant for lewd acts with a minor. This is true when the child doesn't confess about the criminal action or when there's no physical corroboration.

Therefore, your attorney will consider the following to determine whether the facts of the accusations are true:

  • Subpoena the child's medical record, school, record, and social network account.
  • Interview the child's schoolmate, siblings, family, and online friends.
  • Conduct a background check on the alleged witnesses and the alleged victim.

In most cases, thorough investigations can reveal that a child has been coached to make a false accusation against a defendant. Other investigations can show that a particular child has a history of telling lies about other people. If your attorney can prove this in court, this would help undermine the accuser's credibility and the entire case.

Mistaken Identification

Sometimes a defendant can be mistakenly identified as a perpetrator even when a child identifies potential perpetrators. This is common when:

  • The child doesn't know about the child.
  • There touching took place at an unfamiliar place or a dark place.
  • The child is very young.

A skilled attorney should thoroughly investigate the allegations to look for facts that would undermine the child's identification of the perpetrator.

Accidental Touching

A prosecution for lewd acts with a minor must involve willful touching. Therefore, if the touching was accidental, the defendant is innocent of these charges. Look at the following example to understand this legal defense:

Scott is accused of lewd acts with a minor when he accidentally touches his nine-year-old daughter's vaginal area through her clothes while playing with her. Since he doesn't intend to touch her, he's innocent of lewd acts with a minor.

Lack of Intent to Arouse

California Penal Code 288 only prohibits a defendant from any action purposed at arousing the defendant. Therefore, if the defendant didn't intend to arouse or gratify himself sexually, this doesn't suffice as lewd acts.

Below is an example that will help you understand this defense strategy:

Sally holds onto his nephew's Nathan penis to examine what appears to be a rash on it. Later on, Nathan accuses Sally of lewd acts with a child. In this situation, Sally is innocent of these charges since her action did not arouse her or Nathan. 

The Child's Age Doesn't Meet the Age Limit for the Crime

A prosecution for lewd acts with a minor must involve a child below 14 years or who's 14 or 15 years and at least ten years younger than the perpetrator. Therefore, you cannot be guilty of this crime if the minor is older than 15 years or less than ten years younger.

However, this doesn't entirely acquit you of any criminal charges. You can still be prosecuted for statutory rape or sexual battery.

Crimes Related to Lewd Acts with a Child in California

Prosecutors frequently charged defendants with lewd acts along with other lesser offenses. Here are several crimes that are often prosecuted along with Penal Code 288.

California Penal Code 288.2: Sending Seducing Information to a Minor

Penal Code 288.2 prohibits people from sending erotic materials to children to arouse themselves or the target children. An example that explains this crime is when a person sends nude photos to a child he has been chatting with online.

A violation of this statute is a wobbler. A misdemeanor carries a maximum of one year in jail and a fine of up to $1,000. A felony conviction carries a maximum of three years in prison and a fine of up to $10,000.

A felony conviction can also lead to a requirement to register as a tier-three California sex offender.

California Penal Code 288.3: Contacting a Minor to Commit a Sexual Crime

California Penal Code 288.3 prohibits people from contacting a minor to commit a felony like lewd act, rape, sodomy, or participate in pornography. Most people contact minors online and arrange a sex get-together.

A violation of this statute is a felony with a maximum of three years in prison. It also triggers a lifetime registration as a California sex offender.

California Penal Code 288.7: Arranging A Meeting with a Minor for Lewd or Lascivious Purposes

You can be charged under Penal Code 288.7 if you arrange to meet a child to engage in a sexual offense. A violation of this statute is a wobbler. Most defendants are charged with misdemeanors which carry a maximum of one year in jail and a fine of $5,000.

You can be convicted as a felony if you have a prior conviction that requires registration as a California sex offender and if you attend the arranged meeting. The potential penalties for a felony conviction include a maximum of four years of imprisonment and a maximum fine of $10,000. A felony conviction can also result in lifetime registration as a third-tier sex offender.

Penal Code 288.5: Continuous Sexual Abuse of a Child

California Penal Code 288.5 makes it a crime to involve in three or more sexual acts or lascivious or lewd acts within more than three months. A person who's convicted of this crime faces 6 to 16 years of imprisonment.

California Penal Code 288.7: Sex with a Minor Below 10 Years

Engaging in sex with a child below ten years is prohibited under California Penal Code 288.7. A conviction can lead to the following penalties:

  • 25 years to life imprisonment for engaging in sodomy or sexual intercourse.
  • 15 years to life for oral copulation.

California Penal Code 287: Oral Copulation with a Child

California Penal Code 287 is the statute that prohibits oral copulation with a child. Oral copulation with a child below 14 years is a felony with punishment that includes three to twelve years of imprisonment.

California Penal Code 311: Child Pornography

Child pornography in California is prohibited under California Penal Code 311. This statute prohibits the distribution or possession of materials that show a child engaging in sexual activity or displays a child's genitals.

Child pornography can be a wobbler or a straight felony. A misdemeanor carries a maximum of one year in jail, while a felony carries up to three years of imprisonment.

California Penal Code 243.5: Sexual Battery

California Penal code 243.5 prohibits the touching of the intimate part of another person to gratify, arouse sexually, or sexually abuse that person. Sexual battery is different from lewd acts with a minor since it doesn't include the alleged victim's age. It's often filed when the alleged victim is 16 or 17 years old or less than ten years younger than the perpetrator.

Sexual battery is a wobbler with a misdemeanor carrying the duty to register as a sex offender for a minimum of ten years. A felony convict must register as a sex offender for a lifetime.

California Penal Code 261.5: Statutory Rape

California Penal Code 261.5 prohibits sex with a child below 18 years. A defendant can be convicted of statutory rape even if the minor willfully participated in the sexual intercourse.

Statutory rape is a wobbler with a maximum of four years of imprisonment when convicted of a felony.

Contact a Sacramento Criminal Attorney Near Me

As you have learned, a conviction for lewd acts with a minor carries severe penalties. You should speak to an experienced attorney to help you understand and protect your rights. A reliable attorney will also build relevant legal defense strategies to reduce or dismiss your criminal charges. Contact the California Criminal Lawyer Group in Sacramento today at 916-775-7660 and schedule an appointment for a detailed review of your charges.