California Penal Code 288(b)(2) makes it a crime for caretakers to commit lewd acts on dependent adults or a person physically impaired over 65 years old.
A “dependent person” is someone with a physical or mental impairment that prohibits their ability to perform routine activities. PC 288(b)(2) states:
- “Anyone who is a caretaker committing a lewd act on a dependent person by use of force, violence, duress, menace or fear of immediate bodily injury.”
A “caretaker” is typically an owner or employee of a facility that provides daily care for a dependent. Caretakers frequently work at assisted living homes and nursing homes or even offer home care.
Any violations of Penal Code 288(b)(2) carry harsh penalties. A caretaker charged with lewd acts will face a felony charge and imprisonment of up to 10 years.
A lewd act charge is serious, but the statute has language that could prove critical to your defense. In this article by our Los Angeles criminal defense lawyers, we will provide more detailed information below.
What Is a Lewd Act?
The description of PC 288(b)(2) is straightforward, but the legal definition of a lewd act is more complicated. Essentially, it's unlawful conduct for sexual gratification. PC 288(a) states:
- “anyone who willfully and lewdly commits any lewd or lascivious act upon the body…with the intent to arouse, appeal, or gratify the lust, passions, or sexual desires of that person or the child.”
While PC 288(a) is related to lewd acts against children, PC 288(b)(2) prohibits the same type of conduct against dependents.
Further, a lewd act not only refers to committing an inappropriate sexual act on another person but also forcing another person to commit sexual acts on themselves.
What Factors Must Be Proven for a Conviction?
To be convicted of violating Penal Code 288(b)(2), lewd acts by a caretaker upon a dependent adult, the prosecutor has to prove all the elements of the crime listed under California Criminal Jury Instructions 1060 that:
- you were the caretaker of a dependent person,
- you willfully committed a lewd or lascivious act,
- you had the intent to arouse or gratify a sexual desire, and
- you used force, violence, coercion, or fear of a bodily injury.
Note that a lewd or lascivious act includes touching a dependent for sexual arousal, either on their bare skin or through clothing.
How Does California Define Caretakers & Dependents?
To be convicted under this law, prosecutors have to prove you committed a lewd act, used force or intimidation, and that you were a caretaker of a dependent person.
The last item on the list is crucial. Often, defense attorneys have successfully fought PC 288(b)(2) charges based on the specific statutory language around caretakers and dependents.
For example, Penal Code 288.1 states that caretakers refer to “an owner, operator, administrator, employee, independent contractor, agent, or volunteer” at public or private facilities caring for elderly or dependent persons. Some examples of places that use caretakers:
- health facilities,
- adult daycare facility,
- respire care facilities,
- foster homes,
- community care facilities,
- centers for disabled people,
PC 288.3 defines a “dependent person” as somebody with a physical or mental impairment restricting their ability to carry out everyday activities or protect their rights.
California covers developmentally or physically disabled people under this legal definition. A dependent is also someone that has diminished abilities due to age, like anyone living in senior care facilities.
What Are the Penalties for a Conviction?
A PC 288(b)(2) conviction can have severe penalties. It's a felony crime that carries five, eight, or ten years in state prison.
Further, anybody convicted of PC 288(b)(2) must register as a California sex offender. Recently, the state added tiers to the sex offender registry.
Senate Bill 384 created a three-tier system for sex offenders. Anyone convicted of sex crimes now registers as a sex offender for ten years, twenty years, or life.
While you may not have to register as a sex offender for life, even a tier-one crime could have long-term consequences as you could face residency, employment, and child custody restrictions.
What Are the Defenses for Lewd Acts by a Caretaker Charge?
If you are facing lewd act allegations, you need to reach out to a criminal defense lawyer. Our law firm can provide you with professional legal representation throughout the legal proceedings. Some of the common defenses to reduce the charges or a case dismissal include:
- you were not the caretaker,
- the alleged victim was not a dependent adult,
- false accusation and wrongful arrest.
One of the most common challenges for a PC 288(b)(2) accusation is to argue the defendant was not a caretaker as defined by law. We might also be able to make an argument that the victim was not a dependent under the law.
While these arguments could be successful for Penal Code 288(b)(2) PC charges, other similar violations could be filed.
If you are under investigation or already charged with lewd acts by a caretaker on a dependent person, our legal team has the experience to fight for you.
Cron, Israels & Stark is located in Los Angeles County, and we represent people throughout Southern California.
We offer a free case evaluation by calling (424) 372-3112 or filling out the contact form.