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Mental Evaluations for Sex Crime Convictions - PC 288.1

Posted by Dmitry Gorin | May 05, 2022

In the State of California, if you're convicted and sent to prison for one or more sex crimes involving someone under age 14, the law requires the courts to obtain a mental health evaluation on you before agreeing to release you on probation.

This law is embodied in California Penal Code 288.1 PC. The court cannot grant probation unless it determines from this report that you are unlikely to be a repeat offender.

Mental Evaluations for Sex Crime Convictions  - Penal Code 288.1 PC
A Penal Code 288.1 mental evaluation report is used by a judge to decide whether to grant probation.

Put simply, this statute requires the court to obtain and consider a defendant's mental evaluation before they grant them probation in certain sex crime cases. This mental evaluation is also called a Penal Code 288.1 report.

A psychiatrist or psychologist conducts the actual evaluation. They will be asked to review the circumstances of the offense and the defendant's history.

It should be noted that Penal Code 288 PC does not require the court to order a mental examination.  If their record supports denying probation, reporting on a defendant's mental condition falls under the court's discretion.

The primary purpose of the evaluation is to determine whether the defendant's behavior is likely to recur and whether they will continue to be a danger to children.  In this article by our Los Angeles criminal defense attorneys, we will examine this topic in greater detail below.

What Does the Law Require?

PC 288.1 requires a mental health evaluation for anyone "convicted of committing any lewd or lascivious act" against a child under age 14 before the court can release them on probation.

Mental Heath Evaluation for Sex Offenders
PC 288.1 requires a mental health evaluation for defendants convicted of lewd acts on a child under 14.

This report, called a "Penal Code 288.1 report," can only be issued by certain licensed mental health professionals--namely:

  • A reputable licensed psychiatrist; or
  • A licensed psychologist who has earned a doctorate in psychology and has completed at least five years of post-grad experience diagnosing and treating mental/emotional health disorders.

The court cannot release the offender on probation until it has received and reviewed this report and can reasonably determine from the report that the offender no longer poses a danger to children and is unlikely to re-offend.

If the PC 288.1 report does not satisfy the judge regarding the offender's mental condition, they will deny probation and the offender will remain incarcerated.

Which Sex Crimes Apply to PC 288.1?

What constitutes a lewd or lascivious act? Not every sex crime conviction calls for a PC 288.1 report--only those of a "lewd and lascivious" nature committed toward minors under age 14. A few examples of such crimes include:

  • Lewd acts with a minor under Penal Code 288 PC - touching a child under the age of 14 for sexual reasons;
  • Oral copulation by force or fear under Penal Code 287 PC - oral sexual contact with a minor;
  • Sodomy under Penal Code 286 PC - anal sex with a minor;
  • Sexual battery under Penal Code 243.4 PC - forcibly touching a minor sexually;
  • Rape under Penal Code 261 PC – non-consensual sexual intercourse. 

When is a PC 288.1 Report Required?

The PC 288.1 report is not mandatory for everyone convicted of a qualifying sex crime. It is only mandatory as a prerequisite for probation instead of a prison sentence.

In other words, a mental evaluation must be ordered if the judge is considering suspending your sentence and granting probation as an alternative to prison.

The other reason is if you are serving time in prison and are potentially eligible to be released on probation. If you are not eligible for probation or the court intends to deny probation, you are not required to undergo a mental evaluation.

Who Pays for the Evaluation?

Typically, the defendant must pay for their mental evaluation before being considered for probation. This also means you can choose the mental health professional who performs the assessment and writes the report--provided that the person meets the criteria listed above.

If you can't afford to pay for the evaluation, you can petition the court to appoint a psychiatrist to evaluate you at the government's expense.

What If the Report Clears You for Probation?

Suppose the mental health professional who evaluated you determines that you are no longer a threat to children and that subsequent offenses are unlikely. In that case, the judge will likely release you on probation—but they will also probably set some strict conditions for your probation. These may include, but are not limited to:

  • Regular check-ins with a probation officer;
  • Attending mandatory counseling or treatment;
  • A protective order prohibiting you from further contact with the victim;
  • Prohibitions against possessing firearms or working in certain professions;
  • Getting a job and staying employed during your probation or actively seeking work;
  • Restrictions against associating with others who may be on probation or parole;
  • Notifying the police if you move;
  • Not leaving the county or state without permission from your probation officer.

If you violate any of the terms of your probation or commit any other crimes, your probation will be revoked.

If, after reviewing the mental health evaluation, the judge does not believe that releasing you on probation is in the best interest of public safety, they will deny your request for probation, and you will remain incarcerated.

What About Registration as a Sex Offender?

If the PC 288.1 report says you're not a threat, will you still have to register as a sex offender? Yes. In almost all cases, being convicted of a sex crime involving a minor means you must register as a sex offender upon your release from prison, even if the mental health evaluation says you are unlikely to commit another sex crime.

Registration as a Sex Offender in California
If the mental evaluation determines you are not a threat, you will still have to register as a sex offender.

It is important to remember that, even if you are not ultimately released on probation, the report cannot be used against you in further criminal proceedings. In other words, even if the report indicates that you pose a danger to children or are likely to re-offend, this cannot be used to increase your sentence.

If you or a family member needs assistance with a Penal Code 288.1 mental evaluation report after a conviction for a child sex crime, then you should contact our firm for a case review. 

We might be able to negotiate with the prosecutor for a favorable resolution, but the case's specific details must first be examined closely.

Eisner Gorin LLP is a top-rated criminal defense law firm based in Los Angeles County, and we serve people across the state of California. You can contact us for an initial case evaluation by calling (877) 781-1570 or filling out the contact form.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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