The Crime of Lewd Acts with a Minor Under 14 Years Old – PC 288
California Penal Code 288 PC makes it a sex crime to engage in any lewd or lascivious acts with a minor, which are described as acts that are indecent or of a sexual nature. Getting charged with PC 288 lewd and lascivious acts with a minor is also called child molestation.
Under California law, “lewd and lascivious” conduct is generally described as:
- Sexual acts that are considered offensive to common standards of behavior
- Conduct regarding immoral sexual intent or behavior
PC 288 lewd acts normally refer to a crime when an adult has sexual contact with a minor child as either:
- Touching a minor for sexual gratification
- Causing the minor to touch themselves for a sexual purpose
A Penal Code 288 PC, when minor is under 14, is always a felony and a “strike” under California's Three Strikes Law.
Anyone who engages in sexual activity with a minor under 18 years old can be prosecuted for a sexual related crime because minors can't give sexual consent under California law.
Lewd and lascivious conduct can be described as sexual activity that appeals to the lust, passions, or sexual desires of the defendant or victim.
It should be noted that lewd conduct typically requires some type of physical contact, but not penetration.
A California Penal Code 288 PC conviction can result in up to eight years in prison and a mandatory requirement to register as a sex offender under Penal Code 290 PC.
What Type of Conduct Is Prohibited under Penal Code 288 PC?
PC 288 defines a many different crimes involving lewd and lascivious acts and penalties based on the presence or absence of certain aggravating factors.
When an adult engages sexual activity with a minor who is 16 or 17 years old, then different statutes apply and the case is typically prosecuted as statutory rape, which is a lesser charge.
Penal Code 288 addresses conduct between adults and minors aged 15 or less.
When an adult engages in lewd conduct with a minor aged 14 or 15 years old, and the adult is at least 10 years older, then the case would be prosecuted under Penal Code Section 288(c)(1).
What Must Be Proven for a Penal Code 288 PC Conviction?
In order to establish guilt beyond a reasonable doubt, prosecutors typically seek witness statements, reporting from law enforcement, physical evidence, DNA or other forensic evidence, etc.
In order to be convicted of PC 288, lewd and lascivious acts with a minor, the prosecutor has to prove beyond a reasonable doubt, all the “elements of the crime” listed under CALCRIM 1110:
- You willfully and lewdly touched part of a minor's body, or caused the minor to touch their own body, or the body of someone else, and
- You committed the act acted with intent to arouse, appeal, gratify the lust, passion, or sexual desires of yourself or the minor
The most crucial factor in a PC 288 prosecution is that you had a specific intent to satisfy sexual arousal or desire.
It doesn't matter if you lewdly touched their naked body or just over their clothing.
What are the Penalties for PC 288 Lewd Acts with a Minor?
A violation of Penal Code 288 is a “wobbler” that can be charged as either a misdemeanor of felony crime.
The filing prosecutor typically considers different factors to decide how the file the case, including:
- Age of the minor
- Age difference between you and the minor
- Whether force, fear, or threat of harm was used
- Defendant's criminal record
If convicted of PC 288 as a misdemeanor, the penalties include:
- Up to one year in the county jail
- A fine up to $1,000
If convicted of a PC 288 felony lewd acts with a minor, the penalties include:
- One, two, or three years in the California state prison
- A fine up to $10,000
If the minor subjected to lewd or lascivious acts is under the age of 14, the penalties include:
- Straight felony conviction which can't be reduced to a misdemeanor
- Three, six, or eight years in the California state prison
It should be noted that this punishment applies for lewd or lascivious act that can be anything as simple as touching of the private area, buttocks, or female breasts.
It also includes more aggravated cases involving oral copulation, penetration, or other conduct.
In Penal Code 288 PC cases where force, violence, threats, menace, or other methods used to accomplish the lewd acts, the penalties will be significantly increased to:
- five, eight, or ten years in the California state prison
- A fine up to $10,000
Enhanced penalties also apply in a situation where the minor victim is a dependent for whom the defendant was charged with acting as a caretaker.
Also, anyone convicted under Penal Code 288(b)(1) won't be eligible for probation, meaning they must be sentenced to state prison time.
Penal Code 290 PC Sex Offender Registration
Any defendant convicted of committing lewd and lascivious act with a minor are also required to register as sex offender for life Penal Code Section 290 PC.
There have been some recent changes that in the future, some defendants in an appropriate case might be able to petition the court for a reduction of their sex offender registration term to 10 or 20 years.
However, at this moment, the California courts have not started considering these type of petitions.
What are the Related California Offenses for Penal Code 288 PC?
- Penal Code 288a PC – oral copulation with a minor,
- Penal Code 288(b) – lewd acts with minor using force or fear,
- Penal Code 288(c) – lewd acts with minor 14 or 15 years' old,
- Penal Code 288.2 PC – sending harmful material to seduce minor,
- Penal Code 288.3 PC – contacting minor to commit a felony,
- Penal Code 288.4 PC – arranging meeting with minor for lewd purpose,
- Penal Code 288.5 PC – continuous sexual abuse of a minor,
- Penal Code 288.7 PC – sex with a child under 10 years' old,
- Penal Code 311 PC – child pornography,
- Penal Code 647.6 PC – annoying or molesting a child.
How Can I Fight PC 288 Lewd Acts with a Minor Charges?
It should be noted a minor's consent to engaging in sexual activity is NOT a valid defense because under California law, they can't give consent.
Our Los Angeles criminal lawyers can use several defenses against charges of Penal Code 288 PC lewd and lascivious acts with a minor, including:
- reasonable doubt
- false accusation
- lack of corroboration
- accidental touching
- no intent for sexual gratification
It should be noted that every PC 288 case is unique and will have a different set of facts, circumstances, and evidence. Let's take a closer look at the common defenses:
- Reasonable doubt - In most PC 288 lewd act with a minor case, along with many other sexual-related offenses, the alleged illegal conduct occurs behind closed doors. This means there is typically a lack of third-party witnesses and can often present an evidentiary problem for a prosecutor attempting to obtain a conviction.
- False accusation – frequently, the prosecutor's case will depend on the credibility of the minor. We might be able to prove the accusations are false by examining the child's past record or find evidence they were coached by an adult with other motives such as anger or jealously.
- Accidental touching – recall the elements of the crime that state you must have “willfully” touched the minor. We might be able to show the touching was accidental.
- Lack of intent for sexual gratification – again, recall the elements of the crime that state the touching was performed for sexual gratification. This is often difficult to prove and we might be able to argue there was no sexual related intent.
Prefiling Intervention in PC 288 Lewd Acts with Minor Cases
Due to the potentially life-changing consequences to a defendant who is charged with Penal Code 288 PC lewd acts with a minor, a prefiling intervention to persuade law enforcement and the prosecutor to reduce or dismiss the charges is critical.
Our experienced Los Angeles criminal defense lawyers can make contact with the investigating police detective and the reviewing filing prosecutor.
We will present mitigating information about the defendant's history, background, and reputation. We can argue issues of proof and any legal defenses which might apply before the case is formally filed in criminal court.
Eisner Gorin LLP are Los Angeles criminal defense lawyers located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is located next to the Van Nuys Superior Court at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our firm for an immediate consultation at (877) 781-1570.