Being charged under California Penal Code 288(a), known as lewd or lascivious acts with a child under 14, is a serious issue. This law differs significantly from other crimes, and understanding its specific aspects can help you build your defense.
The law makes extensive efforts to shield minors from sexual abuse, including expanding the definition of abuse and influencing sentencing procedures if convicted.
This law straightforwardly bans engaging in lewd or lascivious acts with anyone under 14. For such acts to be illegal, they must be performed to excite or appeal to the desires of either the defendant or the child.
However, it is not necessary to actually arouse, appeal to, or satisfy sexual desires—simply committing the act is sufficient.
Although PC 288(a) does not allow a mistake of fact instruction regarding age as a defense, you may still claim a mistake of fact for attempted lewd acts. Additionally, each act that fulfills the criteria of section 288 can be prosecuted as a distinct and separate violation.
What Does PC 288(a) Say?
PC 288 (a) says, "Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, 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 and shall be punished by imprisonment in the state prison for three, six, or eight years."
Key Takeaways
- Inappropriate touching isn't limited to skin-to-skin contact. Touching over clothing is also a violation if it is done with sexual intent.
- Similarly, prompting a minor to touch themselves for the perpetrator's pleasure—such as encouraging masturbation during a video chat—also qualifies as a crime under this law..
- Touching does not need to involve sexual organs. Any contact with the perpetrator's or child's body that can be demonstrated to serve sexual gratification is considered lewd or lascivious.
- There is no set minimum duration for inappropriate touching. Even a brief, inappropriate contact with a child can lead to criminal charges under this law.
- Consent does not apply. In accordance with California law, individuals under 18 are legally unable to give consent.
What Exactly is a Lewd Act?
California Penal Code 288(a) bans lewd or lascivious acts involving a child under 14, committed with the intent to arouse or satisfy sexual desires of either the perpetrator or the victim.
Such acts do not need to involve physical harm or violence; even minor touching meant for sexual pleasure qualifies. Examples include, but are not limited to, such actions.
- Child's inappropriate sexual contact.
- Forcing a child to engage in sexual acts with an adult or another child, or
- Asking a minor to expose themselves for a sexually initiated act.
What Must Be Proven to Convict?
To convict you under PC 288(a), the prosecution must establish all of the following beyond a reasonable doubt:
- You planned to take actions necessary to break the law.
- If you touch any part of a child's body, whether it is bare skin or through clothing.
- You caused a child to touch their own body, your body, or someone else's body, and
- You aimed to arouse, attract, or satisfy the lust, passions, or sexual desires of yourself or the child, and
- The child was younger than 14 years old when the act occurred.
Other Facts About Penal Code 288(a)
- Separate Charges for Each Incident: PC 288(a) allows multiple charges for each act of lewd or lascivious conduct. For example, if a child reports multiple incidents over time, each can be charged separately, raising sentencing risks.
- Attempted Lewd and Lascivious Acts: California can charge you criminally for attempting a lewd act with a minor. Under Penal Code 664, unsuccessful attempts carry the same penalties as completed acts. For example, pressuring a minor to engage in a sexual act, even if they decline, can result in charges under PC 288(a) for attempted acts.
- Sentencing for PC 288(a) Convictions: PC 288(a) is a felony punishable by three, six, or eight years in state prison.
- No Suspended Sentences: Individuals convicted of lewd acts with a minor cannot get suspended or split sentences, meaning full incarceration is mandatory if convicted.
- Concurrent Sentencing: While defendants can be charged multiple times for repeated acts, California law usually requires concurrent sentences for PC 288(a) convictions involving the same victim during one incident, meaning all sentences are served simultaneously.
- Three Strikes Law: Engaging in lewd acts with a child under 14 is considered a violent felony under California's Three Strikes Law. Convictions will add a strike to your criminal record, and having two prior strikes may lead to a mandatory sentence of 25 years to life for a new PC 288(a) conviction.
- Sex Offender Registration: Under California law, lewd acts involving a minor are classified as Tier 2 sex offenses. This requires you to register as a sex offender and maintain that registration for a minimum of 20 years.
- Deportation for Illegal Immigrants: Convictions under PC 288(a) are considered aggravated felonies and crimes of moral turpitude under federal immigration law. Non-citizen defendants, including lawful permanent residents, face serious immigration penalties, such as deportation and permanent inadmissibility.
What are the Related Crimes?
The crimes listed below are considered related because they are often charged under Penal Code 288(a) and share common elements that the prosecutor must prove beyond a reasonable doubt.
The California Penal Code includes multiple offenses concerning lewd acts with a child, such as:
- Sending harmful material to seduce a minor (PC 288.2).
- Contact a minor with the intent to commit specific felonies (PC 288.3).
- Arranging a meeting with a minor for lewd purposes (PC 288.4).
- Sexual intercourse or sodomy with a child under 10 (PC 288.7).
- Continuous sexual abuse (PC 288.5).
- Annoying or molesting a child (PC 647.6).
- Distributing obscene material involving a minor (PC 311.1).
- Oral copulation with a minor (PC 288a(a)).
What are the Best Defenses?
Although these charges are serious, an experienced California criminal defense attorney can often employ various defenses based on your case specifics. Typical defenses include:
Because intent is crucial under PC 288(a), demonstrating that there was no sexual motive can serve as a compelling defense. Young children might misunderstand actions, or accusations could result from manipulation during custody disagreements or coercion by an adult.
Cases involving PC 288(a) usually rely heavily on a child's testimony. While this testimony is crucial, it must be supported by corroborating evidence.
A skilled defense attorney will carefully examine the prosecution's evidence, looking for gaps, inconsistencies, or lack of support. For further guidance, contact our criminal defense law firm, Cron, Israels & Stark, located in Los Angeles, CA.
