Lewd Acts with a Minor – California Penal Code 288
The crime of “lewd acts with a minor” is described under California Penal Code 288. This statute criminalizes the act of touching a minor's body for a sexual purpose. This sex crime is also known as lewd and lascivious conduct on a minor.
In order to violate PC 288, you have to touch a child under 14 years old with the purpose of arousing yourself or the child. It should be noted the “touching” doesn't have to occur on a specific body part.
In fact, the touching could occur over the minor's clothing or even in a situation where you instructed the minor to touch themselves. It's not a defense against PC 288 charges if the minor gave consent to the touching.
If you just rub yourself against the minor who is fully clothed for a sexual purpose, you could still be charged with lewd acts with a minor under Penal Code 288. A closely related crime is Penal Code 261.5 PC statutory rape.
If a prosecutor has the evidence to make them believe you touched a minor for a sexual purpose, they will normally aggressively pursue a conviction. In order to be convicted, it's not necessary for the prosecutor to prove sexual gratification was achieved.
If you are under a criminal investigation for PC 288 lewd acts with a minor, you need to understand police detectives are paid to build a case against you. Exercise your legal right to remain silent as you might make incriminating statements that will be used against you in court.
To give readers more information about lewd acts with a minor charge, our Los Angeles criminal defense attorneys are providing a detailed review below.
What Must the Prosecutor Prove?
California Penal Code 288 defines lewd acts with a minor and there are certain factors that must be proven to obtain a conviction. These are commonly known as the “elements of the crime” and listed under CALCRIM 1110 – Lewd or Lascivious Act: Child Under 14 Years, that you:
- Willfully touched a minor's body, or willfully caused them to touch their body, or your body, or another person's body
- Touching was for the intent to arouse, gratify lust, or sexual desire of the minor or yourself
The term “willfully” simply means it was on purpose, not an accident. It doesn't matter if you had intent to harm the minor. As stated above, the unlawful touching could occur by touching a minor's body part, but does not have to be their bare skin.
Also, the prosecutor is not required to prove that sexual arousal was actually achieved, rather only that you intended to satisfy a sexual desire.
If the prosecutor is able to prove these two crucial factors, there is a good chance you could for lewd acts on a child. See related CALCRIM 1111 Lewd or Lascivious Act: By Force or Fear and Lewd Acts by a Caretaker.
Penalties for Penal Code 288.2 Lewd Acts with a Minor
Penal Code 288.2 lewd act with a minor is California “wobbler” crime. This means the prosecutor has the discretion to file the case as either a misdemeanor or felony crime.
They penalties will usually depend on the age of the child. If the minor was under 14, the case will be filed as a felony and the penalties could include up to 8 years in a California state prison.
If any force or threats were used, the penalties will increase. If you have a prior sex crime conviction, you might face prosecution under the California habitual sexual offender law and receive up to 25 years in prison and it will count as a “strike” under the Three Strikes Law.
A felony PC 288.2 conviction will also require lifetime registration as a sex offender. Penal Code 667.71 PC defines the habitual sex offender law in California. Penal Code 286 PC defines the crime of sodomy. Penal Code 266 PC defines child prostitution.
If the victim was 14 or 15 years old, and you were 10 years older than the minor, the case is a wobbler. If convicted of a felony, the penalties include up to one year in a county jail, or up to three years in prison.
Related California Offenses
Penal Code 288.2 – Sending harmful material to seduce minor
Penal Code 288.3 – Contacting a minor to commit felony
Penal Code 288.4 – Arranging a meeting with a minor for lewd purposes
Penal Code 288.5 – Continuous sexual abuse of a child
Penal Code 288.7 – Sex with a child under 10 years old
Penal Code 289 PC - Forcible penetration with a foreign object
Penal Code 288a – Oral copulation with a minor
Penal Code 647.6 – Annoying or molesting a child
Penal Code 269 – Aggravated sexual assault of a child
Fighting Penal Code 288.2 Charges
If you have been accused of lewd acts with a minor in violation of California Penal Code 288.2, our Los Angeles criminal defense attorneys can use a variety of strategies in an attempt to obtain the best possible outcome. Some common defenses include:
We might be able to make an argument that you were falsely accused and wrongfully arrested for committing lewd acts on a child. When a minor accuses someone of a lewd act, police and prosecutors will aggressively pursue the case. In some cases, overzealous police detectives don't thoroughly investigate the case in their rush to charge someone with these high-profile crimes.
Many PC 288.2 cases have no physical evidence and the case will depend on just statements from the alleged victim. We might be able to show the minor had perceived motives to harm you or they might have a history of false allegations.
Touching was accidental
Recall from the elements of the crime above that the prosecutor must prove you willfully touched or willfully caused the minor to touch you. We might be able to argue the touching was not “willful,” but an accident and was misinterpreted.
Lack of intent to arouse
Again, recall from the elements of the crime that the prosecutor must be able to prove that the alleged touching was specifically intended to sexually arouse or gratify yourself. This can often prove difficult for a prosecutor and we might be able to argue there was no intent to arouse or gratify a sexual desire.
Contact Our Criminal Law Firm for Help
If you are facing allegations of violating Penal Code 288.2, lewd acts on a minor, don't make any statements to law enforcement as you might make incriminating statements that will be used against you in court. Just an allegation you were involved in a sex crime against a child can ruin your reputation and career.
Your freedom is at stake and you should consult with our Los Angeles criminal defense attorneys to thoroughly examine all the details. We know how prosecutors will attempt to build a case against you.
We might be able to negotiate with the prosecutor for reduced charges or even a case dismissal. Also, it might be possible to avoid the formal filing of criminal charges through prefiling intervention.
Cron, Israels & Stark is a criminal defense law firm of highly skilled lawyers that have decades of combined experienced and a record of success. We are located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025 and 401 Wilshire Blvd #1200, Santa Monica, CA 90401. Contact us for a free case evaluation at (424) 372-3112.