Review of the Crime of PC 288.2 Sending Harmful Matter to Seduce a Minor
California Penal Code 288.2 PC makes it a crime to send or distribute obscene material to a minor under 18 years old, with the intent of sexual arousal, or in order to have sex with them.
This sex crime statute is a “wobbler” offense that the prosecutor can file as either a misdemeanor or felony. If you are convicted of PC 288.2, you will be required to register as tier-three sex offender for life.
This type of criminal conduct normally occurs over the internet, but also through the mail or any other type of delivery method.
Anyone charged with violating Penal Code § 288.2 must have sent or distributed the harmful material with the intent of arousing, appealing to, or gratifying the sexual desires of either the minor or defendant.
California, like most states, has very strict criminal laws pertaining to minors and sexual misconduct. PC 288.2 is one such statute and it's important to understand the definition and which actions would constitute a crime.
For more information, our Los Angeles criminal defense lawyers are reviewing this statute below.
What Is Penal Code 288.2 PC?
California Penal Code Section 288.2 is a statute prohibiting the sending of harmful matter to a minor with the intent to sexually arouse or seduce. PC 288.2 states:
- “anyone who knows, or should have known, a person is a minor, knowingly distributes any harmful matter with the intent of arousing their sexual desires or of the minor, and with the intent to engage in sexual intercourse, is guilty of a crime.”
Sending this kind of material to a minor, usually through electronic means over the Internet, is a crime in California and could result in either a hefty fine, jail time, or status as a registered sex offender for life.
Examples of sending harmful matter to a minor
- Sending a pornographic video or image to a minor and asking them to replicate;
- Exchanging emails, SMS, or other messages containing sexual content with a minor with the intention of arousing the minor or having sex with them;
- Sending a minor an email or other message with sexual images in an attempt to seduce the minor;
Factors That Must Be Proven for a PC 288.2 Conviction
The prosecutor must prove that the accused person knowingly sent or distributed harmful material with an intent to arouse or engage in sexual intercourse (CALCRIM 1140).
On the other hand, there doesn't need to have been actual physical contact to convict someone of sending harmful matter to a minor.
What makes the material “harmful”?
- The material shows or describes sexual conduct in an obviously offensive way.
- The material lacks serious literary, artistic, political, or scientific value for minors.
- An average adult would conclude that the material shows a shameful or morbid interest in nudity, sex, or erection (a prurient interest).
A “prurient interest” is described as a shameful interest in nudity or sex. The material under this statute could include a magazine, video, or any other printed material. Further, it also includes pictures, drawings, or movies.
Penalties for Sending Harmful Matter to a Minor
Penal Code 288.2 PC sending harmful or obscene material to a minor with the intent of sexually arousing them can be filed by the prosecutor as a felony or misdemeanor crime, which is called a “wobbler.”
If convicted as a misdemeanor, sending harmful matter to a minor is punishable by:
- up to one year in county jail, and
- a maximum fine of $1,000.
As a felony, this conviction can carry:
- up to three years in California state prison, and
- a maximum fine of $10,000,
- registration as a tier-three sex offender for life.
The repercussions of this kind of conviction go beyond punishments in the California criminal justice as well.
If charged and convicted with a felony, you forfeit your right to buy, own, or possess a gun in the state of California.
If you're a non-U.S. citizen, this charge and conviction could get you deported or make you inadmissible for entry into the United States.
In California, it's possible to get misdemeanors expunged, but not felonies.
In other words, if you are convicted of a misdemeanor crime of sending harmful matter to a minor and completed probation, you may be eligible for an expungement.
Related California Sex Crimes
Penal Code 288 PC – lewd acts with a minor,
Penal Code 288.3 PC – contact a minor to commit a felony,
Penal Code 288.4 PC – arrange meeting with minor for lewd purposes,
Penal Code 311 PC – child pornography,
Penal Code 647.6 PC – annoying or molesting a child.
Best Defenses for Sending Harmful Matter to a Minor Charges
If you've been charged with sending harmful matter to a minor in violation of Penal Code 288.2 PC, there are different strategies we can use from a legal standpoint;
- The material wasn't harmful as defined under this statute. We might be able to argue that you sent material to a minor, but that it wasn't harmful.
- There was a lack of criminal intent. We might argue you didn't act with the intent to sexually arouse or seduce the minor to have sex.
- You were falsely accused. It's not uncommon for minors or their parents to unjustly accuse an adult out of anger or revenge.
If you have questions about what the state of California considers sending harmful materials to minors, you should speak with a qualified defense attorney right away.
If you're dealing with a charge under PC 288.2, you should remain silent and never make any statements to police detectives.
You could make incriminating statements that will be used against you later in court.
If convicted, the potential consequences are harsh and long-lasting.
Through prefiling intervention, we may be able to persuade the prosecutor to avoid filing formal charges.
We are former Los Angeles County prosecutors and understand the details and nuances of this type of sexual related crime.
If you need assistance with your sending harmful matter to a minor case, call the law firm of Eisner Gorin LLP at (877) 781-1570, or contact our office online.