Review of the Crime of PC 288(b)(2) Lewd Acts by a Caretaker
California Penal Code 288(b)(2) prohibits caretakers from committing lewd acts on dependent adults, or a person physically impaired over 65 years old.
A “dependent person” is anyone with a physical or mental impairment prohibiting their ability to perform normal routine activities. PC 288(b)(2) states:
- “a person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person.”
A “caretaker” could be an owner or employee of a facility that provides daily care for people who are a dependent.
These caretakers normally work at assisted living homes, nursing home, or they provide care at dependent's own home.
Like similar led act laws, violations of PC 288(b)(2) carry strict punishments. Any caretaker charged with a lewd act against a dependent adult faces a felony charge and imprisonment of up to 10 years.
While there's no denying the severity of a lewd act charge, PC 288(b)(2) includes some language that could prove critical to your defense.
For more detailed information, our Los Angeles criminal defense lawyers are providing an overview below.
What Is a Lewd Act?
Although PC 288(b)(2) is straightforward, the definition of a lewd act is more complex. Lewd acts refer to unlawful conduct done for sexual gratification.
PC 288(a) states that any person who:
- “willfully and lewdly commits any lewd or lascivious act upon the body…with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child” is guilty of a felony lewd act.
Although PC 288(a) refers to lewd acts against children, PC 288(b)(2) prohibits the same behavior against dependents.
A lewd act doesn't only refer to committing an inappropriate sexual act on someone else. You can be charged with a lewd act for forcing another person to commit sexual acts on themselves.
What Factors Must Be Proven for a Conviction?
In order for a prosecutor to convict someone of violating Penal Code 288(b)(2), lewd acts by a caretaker upon a dependent adult, they have to prove all the elements of the crime (CALCRIM 1060):
- you were a caretaker of a dependent person, and
- you willfully committed a lewd or lascivious act on them,
- with the intent to arouse or gratify a sexual desire, and
- you used force, violence, duress, or fear of bodily injury.
A lewd or lascivious act includes touching a dependent for sexual arousal on any part of their body, either on bare skin or through their clothing.
How California Defines Caretakers & Dependents
As stated above, to be convicted under PC 288(b)2, prosecutors must prove you committed a lewd act, used force or intimidation, and you are a caretaker of a dependent person
The last item could prove crucial in your case. Many defense attorneys have successfully challenged PC 288(b)(2) charges due to its specific language around caretakers and dependents.
Penal Code 288.1 PC establishes that caretakers refer to “an owner, operator, administrator, employee, independent contractor, agent, or volunteer” at public or private facilities that care for the elderly or dependent persons.
Here are some examples of places that use caretakers:
- health facilities,
- adult daycare centers,
- respire care facilities,
- foster homes,
- community care facilities,
- centers for developmentally disabled people.
PC 288.3 defines a dependent person as someone who has a physical or mental impairment that restricts their ability to carry out normal activities or protect their rights.
California covers developmentally or physically disabled people under this definition. Dependent also refers to those who have diminished abilities due to age, such as those living in senior care facilities.
Penalties for Violations of PC 288(b)(2)
A PC 288(b)(2) conviction can have ramifications that last your entire life. The crime is a felony with a punishment of five, eight, or ten years in state prison.
A person convicted of PC 288(b)(2) must also register as a sex offender. Recently, California added tiers to its sex offender registry.
Senate Bill 384 established a three-tier system for sex offenders. Those convicted of sex crimes now register as sex offenders for ten years, twenty years, or life.
Although you may not have to register as a sex offender for life, even a tier-one offense can have long-term ramifications. You may face restrictions on residency, employment, child custody, and more.
Defenses for Lewd Acts by a Caretaker Charges
If you face a lewd act accusation, you should seek out a criminal defense lawyer right away. Our defense law firm can provide you with skilled representation throughout legal proceedings.
Some of the most common defenses to reduce the charges or get the case dismissed include:
- you were not a caretaker,
- alleged victim was not a dependent adult,
- false allegation.
A common way defense lawyers push back against PC 288(b)(2) violations is by establishing that their client was not a caretaker as defined by law.
Further, we might be able to make an argument that the victim was not a dependent.
Although these arguments might challenge PC 288(b)(2) charges, there are many similar violations. You may face additional penalties if found guilty of a lewd act that did not involve a dependent.
This type of sexual related crime is a serious issue and you will need a seasoned lawyer to have a chance to achieve the best possible result in your case.
Through prefiling intervention, we might be able to avoid the filing of formal charges before court.
If you are facing a Penal Code 288(b)(2) charge for lewd acts by a caretaker on a dependent person, our team of top-rated criminal defense attorneys have the experience to give you the chance at a favorable outcome.
Eisner Gorin LLP represents clients throughout Southern California from our two office locations in Los Angeles County.
We need to review all the details of the case to determine a strategy. Call our office at (877) 781-1570, or you can contact our law firm online.