Lewd Acts with a Minor by Force or Fear - Penal Code 288(b)(1) PC
The felony crime of PC 288(b)(1) lewd act with a minor by force or fear involves someone willfully touching a minor under 14 years old for sexual purposes or making them feel themselves or another person for sexual gratification.
While this statute is closely related to the infamous PC 288 lewd acts with a minor, defined as willfully touching a child for sexual purposes, this statute requires the perpetrator to use force or fear bodily harm during the incident.
An example of a California Penal Code 288(b)(1) PC lewd acts with a minor by force or fear include a situation where an adult threatens a 13-year-old girl that he will hit her in the face unless she touches his genitals.
Another example includes a scenario where an adult threatens a young 12 years old girl unless she exposes her breasts.
The force or fear element required for a conviction of lewd acts by force or fear means any physical threat or contact related to the meeting where the lewd act allegedly occurred.
A PC 288(b)(1) lewd acts with a child by force or fear is a felony crime. If convicted, you face up to ten years in state prison and mandatory sex offender registration for life as defined under Penal Code 290 PC.
To obtain a conviction for violating Penal Code 288(b)(1) PC, the prosecutor has to be able to prove, beyond any reasonable doubt, all the elements of the crime listed under California Criminal Jury Instructions 1111. Let's review this state law in more detail below.
What Are the Related California Crimes?
Several crimes are related to lewd acts with a minor by force or fear, such as lewd acts with minors, lewd acts with minors causing harm, and lewd acts by a caretaker. Let's review some below.
Penal Code 288 PC lewd acts with a minor is touching a minor's body for a sexual purpose. A felony conviction carries up to eight years in prison.
Penal Code 288(a) PC lewd acts with a minor child without force involves somebody willfully committing a lewd and lascivious act with a child under 14 for sexual gratification. A felony conviction carries three, six, or eight years in state prison and sex offender registration for 20 years.
Penal Code 288(b)(2) PC lewd acts with force by a caretaker involves a caretaker of a dependent or impaired person performing lewd acts on them. A felony conviction carries five, eight, or ten years in prison and requires lifetime sex offender registration.
Penal Code 288i PC lewd acts with a minor causing harm involve somebody willfully committing a lewd act with a child under 14 for sexual gratification and causing physical harm. A felony conviction carries a life sentence and requires lifetime sex offender registration.
Penal Code 287 PC oral copulation with a minor involves the act when it's accomplished using force, violence, duress, menace, or fear. A conviction carries up to 8 years in state prison.
Penal Code 261.5 PC statutory rape involves sexual intercourse without someone under 18, who can't legally consent to sexual activity. California does not have a close-in-age exception, called a “Romeo and Juliet Law.”
What are the Potential Penalties?
A felony conviction for violating Penal Code 288(b)(1) PC lewd act with a minor by force or fear carries the following penalties:
- five, eight, or ten years in state prison;
- register as a sex offender for life.
However, the judge can impose formal felony probation rather than jail time.
What are the Possible Defenses for PC 288(b)(1)?
There are several possible legal defenses for charges of California Penal Code 288(b)(1) lewd act with a minor by force or fear, which are discussed below.
Perhaps we can argue that the allegations are false. Maybe the accuser is motivated by anger or jealousy and coached a child to make up the story.
Through an independent investigation, we may uncover evidence showing the allegations are untrue, exaggerated, or enough to cast reasonable doubt.
Perhaps we can argue that the child is 14 or older, which is one of the main elements of the crimes. However, you could potentially face charges under another statute.
Perhaps we can argue that the touching was accidental. Recall from above that the prosecutor must be able to prove that you touched or acted lewdly on purpose.
This means they must demonstrate that you willfully touched a child's body by force or fear to arouse, appeal to, or gratify the lust, passions, or sexual desires of themselves or the child.
This might be challenging to prove. Maybe we can cast reasonable doubt on the critical issue of “willfully” by showing it was an accident.
Perhaps we can negotiate with the prosecutor for reduced charges, case dismissal, or even persuade the prosecution not to file formal criminal charges, called a “DA reject.”
The California criminal defense lawyers at Cron, Israels & Stark are located in Los Angeles County. Contact us for a free case evaluation by phone or fill out the contact form.