The state of California prohibits a grown-up from engaging in lewd, lascivious, or obscene behavior with a child or minor. A minor, according to the law, is a child that is 14 years or below. When accused of these allegations, it means you willingly engaged in lewd acts for your sexual gratification or to arouse the minor. This is a severe offense, typically prosecuted as a felony. A conviction for the crime will face state imprisonment, among other hefty penalties. The consequences of this crime are even more than court-imposed sentences. This makes it necessary if you are faced with these allegations to hire an experienced criminal attorney to defend you in order avoid a conviction or get charged with a lesser offense.

Defining Lewd Acts According to the Law

PEN 288(a) is the statute that discusses what lewd acts are with a child. The law establishes lewd acts in this case as:

  • Any obscene, lascivious or indecent acts
  • Acted on the person or minor below 14
  • Intending to arouse or satisfy the sexual lust of the offender, the child, or another individual.

For instance, a person charged with babysitting minors can ask them to touch each other’s private parts. Although the babysitter does not directly contact the children, her presence, and ordering them to do, it is an offense. In such a case, the babysitter will face PEN 288(a) violations.

Defining Willfully According to the Law

When a person is charged with this offense, the prosecutor in proving the case must show the defendant acted willfully. Based on the law, you do something willfully when you purposely do it. In doing the thing, you do not have to have had an intention to:

  • Violate the law
  • Cause harm or injuries to someone else or
  • Have an advantage over them

Based on this definition, when a person accidentally touches a child even on their sexual organs, it does not qualify as a lewd act according to PEN 288. For instance, a twelve-year-old boy is in a wrestling team in school. The coach, while training them, tries to show him a new tackle but accidentally touches the boy’s penis. This act was not willful but an accident meaning the coach has not violated PEN 288.

Touching According to PEN 288

Another crucial element in proving a violation of PEN 288 is determining touch. The prosecutor must show that you touched the minor’s body or caused them to feel themselves. Touch, according to this statute, constitutes the common understanding of body contact.

However, the statute does not require touching to happen directly on skin or sexual organs only. Touching can be through clothes or the skin on any part of the body. Additionally, arousal is also not a requirement in this case. In this case, the prosecutor must show the contact was purposeful and aimed at causing arousal or satisfying a sexual fantasy.

For instance, Paul finds his seven-year-old cousin attractive. He asks her to take a nap on the sofa while he plays with her feet that have socks on. The act of massaging the girl’s feet is sufficient to have him sexually aroused. Although his actions do not show that he acted in a lewd manner, he committed a lascivious act because he intended to stimulate himself through the touching.

When Lewd Act is Achieved by the Use of Fear or Force – PEN 288(b)(1)

When a defendant is accused of applying force or instilling fear on a minor to engage in lewd acts, upon conviction, the penalties are steeper. According to this statute, when a defendant uses force, coercion, threats, fear, menace to cause the minor to be afraid of bodily injury to commit the offense, the penalties are harsher.

The use of force, according to this statute, means that the perpetrator was more aggressive in performing the lewd act. For instance, touching the sexual organs of a minor does not constitute the use of force, yet it is an indecent act. When the perpetrator slaps the victim, forcing them to allow for the touching, that is the use of force. The penalties, in this case, will be steeper than when the perpetrator just touched the minor.

Fear, according to this statute, can also be used to commit a lewd act with a minor. When the perpetrator makes the minor reasonably scared or knows the victim is scared and capitalizes on that, they violate this statute.

When the perpetrator uses direct force or threats or even implies them, is subjecting the minor under duress. A person can be said to have performed lewd acts by putting the victim under pressure when:

  • They threaten to injure the minor
  • By controlling the victim physically when they try to resist
  • Warning the victim against disclosing the act which would lead to harming their family

To be convicted of committing an obscene act while the minor was under duress, the jury considers the following:

  • The child’s age
  • The relationship the defendant has with the child
  • The physical size of the perpetrator and the minor
  • The place where the action happened

Menace, according to the law, is when a person behaves in a certain way or says certain things that indicate an intention to harm a person. For instance, a stepfather asking a son to stroke his penis or hurt his sister. The threat may be idle, but the use of the menacing words helped him accomplish the obscene act.

Proving Intent by the Prosecutor

As earlier stated, the intent is a significant element in determining a person committed a lewd act against a minor. The intention is also the most challenging element to prove according to the law. The jury must decide if the defendant acted with intent based on the circumstances. The prosecutor must prove that the defendant committed the act intentionally, and the court will consider the following in the prosecutor’s case:

  • The conditions under which the defendant touched the minor
  • Is the victim known to the defendant and the type of their relationship
  • How was the touching carried out
  • Is there a reasonable and innocent explanation of the touching

Once the above is considered, the defendant can be found either guilty or innocent of the offense.

Penalties for Violating PEN 288 in California

When accused of committing obscene acts to or with a minor, you get prosecuted on felony charges, and the penalties are harsh. However, penalties may vary from one case to the other. Some of the facts to consider before the judge penalizes the defendant are:

  • The minor’s age
  • Whether in the committing of the offense, the perpetrator used threats or force
  • The criminal background of the defendant

Below, we look at the various circumstances to commit the crime and the penalties that follow a conviction.

Penalties when the Minor was Below 14 Years With no Threats or Force

When a person is accused of committing lewd acts with a minor below 14, they are charged with a felony. If force was not used to commit the offense, the person would receive penalties according to PEN 288(a). A guilty verdict on this offense carries the following sentences:

  • State prison incarceration for three, six or eight years and
  • Asked to pay $10,000 in fines

Sometimes, the judge will issue the defendant with an alternative sentence. This may include formal probation and county jail imprisonment for a year or less. It is important to note that even when the defendant is not sentenced to jail, the offense is still a felony.

Who Qualifies for Probation According to PEN 288(a)

Some offenders of PEN 288(a) may qualify for formal probation in California as opposed to imprisonment. The court, in sentencing a defendant to probation, takes into consideration their criminal background and the facts of the offense.

Felony probation, if given, comes with certain conditions, with one of them being a year of county imprisonment. When a defendant fails in fulfilling the probation conditions, they risk having it revoked and getting sentenced to prison.

Penalties when Force or Fear is used to commit Lewd Acts with a Minor below 14

As earlier discussed, when a person uses fear or force to intimidate a minor into lewd acts, they violate PEN 288(b)(1), and the penalties are harsher. The perpetrator gets charged with a felony offense where a conviction carries the following sentences:

  • State imprisonment of five, eight or ten years and
  • Ordered to pay $10,000 in fine

When a defendant is charged on violating this statute and convicted of its violation, the court cannot sentence them to probation. A prison sentence is a must in this case.

Penalties when Lewd Acts with a Minor Result in Bodily Injuries

Several laws in California enhance the penalties for violating PEN 288 when a minor is injured. These are:

  • PEN 667.61(D)(7) – the perpetrator faces 25 years imprisonment to life if they inflicted the victim below 14 with injuries
  • PEN 288(i) – the perpetrator receives life imprisonment when they cause harm to the minor and
  • PEN 12022.8 – additional five-year imprisonment when the perpetrator inflicts significant bodily injury to the minor.

Under these statutes, great bodily injury or harm is defined as when significant physical injuries are inflicted upon the minor.

When a person gets charged with committing lewd acts with a minor below 14 and while doing so, they cause injuries to them; the prosecutor can prosecute them with any of the above offenses. This is beside the charges they would be facing for violating PEN 288.

Penalties for Lewd Acts with a Minor Aged Between 14 and 15

PEN 288(c)(1) makes it a criminal offense to commit lascivious acts with a minor that is between 14 and 15 when the defendant is ten years or older than the minor. Unlike the standard crime of lewd acts with a minor below 14, violating PEN 288(c)(1) is a wobbler in California. This means a person found violating the statute can get charged on a felony or a misdemeanor offense.

The prosecutor will consider the circumstances of the offense and the defendant’s criminal past in deciding how to prosecute the crime.

When the defendant gets charged with a misdemeanor, in this case, a conviction will earn him or her one year or less county jail time. However, even when convicted on misdemeanor charges, you are required to get registered as a sex offender in California.

If the prosecutor finds it necessary to prosecute you on felony charges, a felony conviction will automatically carry steeper penalties. These penalties include:

  • State imprisonment for sixteen or twenty-four months or
  • Formal probation, including a one-year county jail prison time.

Lewd Acts with a Minor that is Between 16 and 17

When a person is accused of committing lewd acts with a minor that was aged between 16 and 17; the offense will not fall under PEN 288. Instead, the perpetrator will get charged with violating either of the following statutes:

  • PEN 261.5 Statutory rape in California
  • PEN 243.4(a) Sexual Battery.

When the Defendant has a Prior PEN 288 Conviction

A repeat offense typically attracts steeper penalties than a first time offense. When a person is accused of violating PEN 288 while they have a prior conviction on the same crime, the prosecutor will add charge. This means, besides the standard PEN 288 charges, the perpetrator will get charged with violating PEN 667.71(b). This statute centers on the defendant being a habitual sex offender.

When convicted on this offense, you get sentenced to a minimum of 25 years to life imprisonment in the state prison.

Other Consequences when Convicted on Committing Lewd Acts with a Child

 Aside from the standard penalties discussed above, a defendant that is convicted of this offense faces other consequences. These are known as collateral repercussions that include:

  • Getting ordered to register as a sex offender as a mandatory requirement
  • Paying restitution to the victim that mostly goes towards their medical bills or therapy and
  • Possible loss of the defendant’s professional license like that of practicing medicine, among others.

Registering as a Sex Offender

When a person gets convicted on PEN 288, they must, according to Megan’s Law, register as sex offenders. A judge cannot lift this mandatory requirement from a defendant. However, with an experienced criminal attorney, a defendant may get a plea deal charging them with a lesser offense that doesn’t require sex offender registration. A lawyer can try and get the prosecutor to charge their client with PEN242, a simple battery offense.

A Sex Offender Duration

The law presently requires any individual convicted of committing lewd acts with a minor to register as a sex offender. In the future, specifically from 2021, sex offenders will register in three tiers. These tiers are based on how severe the offense is a person is convicted with.

Tier 3 Registration – Lifetime

When your offense is considered extremely serious, you will be required to register as a tier 3 sex offender. This registration is for life without the possibility of erasing the record. Some of the offenses that qualify a defendant for this registration are:

  • When convicted of a subsequent PEN 288(a) violation or
  • When convicted of any crime under PEN 288(b)(i).

Tier 2 Registration – 20 Years or Over

When a defendant is convicted on PEN 288(a) charges for the first time, they will be required to register under tier 2. This means the defendant will have their record in the sex offender’s registry for twenty years in the minimum.

Legal Defenses for Lascivious Acts with a Child According to PEN 288

Based on the penalties above, a conviction on this offense will result in severe penalties and collateral consequences. For this reason, fighting against the allegations is essential when one wants to avoid a conviction.

Fortunately, your lawyer has many defenses that he or she can use to prevent your conviction. Because each case or offense is different, your lawyer will analyze the circumstances of the crime and the prosecutor’s evidence to formulate a suitable defense. Some of the arguments that can be used include:

  1. The Minor is Telling a Lie

In most cases, the credibility of the minor is the strength of the prosecutor’s case. This is mostly when the alleged perpetrator has not confessed to the offense, or no physical evidence is available to support the allegations. To determine how truthful the minor is, your lawyer can decide to:

  • Subpoena the alleged victim’s school for their medical, counseling, email records and social media accounts
  • Talk to the child’s family, schoolmates, friends, and social media friends
  • Carry out a comprehensive background check of the child and the prosecutor’s witnesses

Through this, your lawyer can establish if the child is lying and present the same evidence before the court. This evidence may result in a dismissal of the charges against the defendant.

  1. The Alleged Victim is Mistaken

The accuser may be telling the truth about being touched inappropriately. However, they have made a mistake identifying the defendant as the person that touched them. This is possible when:

  • The minor did not know the defendant
  • The touching happened in an unfamiliar or dark place
  • The defendant and the perpetrator were from different races
  • The victim is very young

A lawyer will carry a comprehensive investigation into the circumstances and identify facts that will serve to discredit the minor’s identification of the perpetrator. When the lawyer can convince the court that the defendant is not the perpetrator, the charges against the defendant are dismissed.

  1. The Defendant Touched the Minor by Accident

One of the crucial elements in convicting a person of committing lewd acts with a minor is proving intent. The prosecutor must prove beyond a reasonable doubt that the defendant intentionally touched the victim or caused the child to feel them or others. If the defendant touched the minor by accident, they could not be found guilty of the offense.

  1. The Touch was not Supposed to Arouse the Minor Sexually or the Defendant

According to PEN 288, when contact is made to cause sexual arousal to the minor or perpetrator, it is an offense. If the accused had no intention to get sexual gratification or to arouse the victim, they could not be found guilty of the offense. The prosecutor to get a conviction must show the defendant’s intentions to be those prohibited by the statute.

  1. The Minor is not Within the Age Bracket According to PEN 288

PEN 288 prohibits two kinds of sexual offenses against minors; these are:

  • Committing lewd acts with a minor below 14 and
  • Committing lewd acts with children aged between 14 and 15, and the minor is younger than the perpetrator with ten years.

If the above requirements are not met, the defendant cannot get charged with PEN 288 violations. This means if the child is 15 or older or is aged between 14 and 15, and the perpetrator is below ten years older than them, the defendant has not violated PEN 288.

However, even when this is a valid defense, the defendant can have other charges preferred against them, such as statutory rape under Pen 261 or sexual battery PEN 243.4.

Statute of Limitations

This refers to the law that prescribes time allowed to bring a suit against a perpetrator. California amended its laws recently, allowing an increase in time for bringing charges against a person accused of molesting a child.

According to PEN 801.1, a person can bring up charges against another for lewd acts with a minor as long as the alleged victim has not turned 40. This means a person may have been violated as a minor by a grown-up. However, at the time, they did not understand the impact of their actions. Growing up, they realize that whatever was done to them was wrong and a violation of the law. In such a case, the person can institute a criminal lawsuit against the alleged perpetrator as long as they are not past 40 years.

However, even with the extended time, a victim needs to bring charges against the perpetrator within the shortest time possible.

Find a Lawyer Near Me

A conviction on violating PEN 288 carries life-altering consequences. These allegations cannot be taken lightly and must be fiercely defended. When faced with these allegations, you need to find an experienced criminal attorney that will aggressively defend you against the charges. The LA Criminal Defense Law Firm has a team of lawyers experienced and passionate about defending their clients against such allegations. Talk to us at 310-935-1675, and let us help you avoid a conviction or get a favorable outcome.