Sending Harmful Matter to Seduce a Minor – California Penal Code 288.2
The crime of “sending harmful material to seduce a minor” is described under California Penal Code § 288.2. This statute criminalizes sending or distributing to minors any harmful material of a sexual related nature.
This type of illegal conduct normally occurs using the internet, by mail, or other types of a delivery method. The “harmful material” typically includes material that depicts a minor engaging in sexual activity.
In order to be charged with the sex crime of Penal Code 288.2, a defendant must have sent or distributed the harmful material with specific intent to arouse, appeal to, of gratify the sexual desires of the minor whom they sent the material, or the defendant.
PC 288.2 also requires that the defendant had the intent to engage in sexual contact with the minor, or to persuade them to either allow defendant to touch:
- An intimate body part of their body, or
- Encourage them to touch an intimate body part of defendant's body
In simple terms, Penal Code 288.2 is a statute that criminalizes inducing minors to engage in sexual conduct with adults by sending them harmful material and could be accomplished through sexting.
To give readers more useful information about sending harmful material to seduce a minor, our California criminal defense lawyers are providing an outline below.
What Must the Prosecutor Prove for a PC 288.2 Conviction?
California Penal Code 288.2 defines sending harmful matter to seduce a minor:
“Any person who knows someone is a minor, or should have known, knowingly sends or exhibits by using electronic communication, or in person, harmful matter depicting a minor engaging in sexual conduct with intent of arousing or gratifying passions or sexual desires.”
In order for the prosecutor to obtain a conviction for PC 288.2, they must be able to prove all the elements of the crime, beyond a reasonable doubt, listed under CALCRIM 1140 Jury Instructions – Showing or Sending Harmful Material to Seduce a Minor, that defendant:
- Knowingly distributed, exhibited, or offered harmful matter to a minor by any means
- Knew recipient was a minor, or didn't exercise reasonable care to determine age
- Had specific intent to arouse lust, passions, or sexual desire of yourself or minor
- Had intent to seduce minor to engage in physical sexual activity
In addition, it must be proven the material could be harmful and meets the following conditions:
- Material showed sexual activity that was offensive
- A reasonable person would decide it lacked any artistic value for minors
- An average adult would conclude it appealed to a prurient interest
The term “prurient interest” is generally described as shameful interest in nudity or sexual conduct. It should be noted that the “harmful matter” under Penal Code 288.2 could come from photos, videos, or any type of printed material, such as drawings.
What are the Penalties for PC 288.2 Sending Harmful Matter?
A Penal Code 288.2 conviction for sending harmful material sent to the minor depicting them engaging in sexual activity is a “wobbler” that can be charged as either a misdemeanor or felony offense.
If convicted of a misdemeanor, the penalties include up to one year in a county jail and fine. If convicted of a felony, the penalties include up to five years in a California state prison.
If the materials were harmful, but don't depict minors engaged in sexual contact, then the penalties are reduced. The punishment can include either one year in county jail for a misdemeanor conviction, or up to five years in prison for a felony.
If convicted of a Penal Code 288.2 felony case, it will include mandatory registration as a California sex offender under Penal Code 290.
This is known as the Sex Offender Registration Act which requires a convicted defendant for specific California sex crimes to register as a tier three lifetime sex offender.
Anyone who fails to register as a sex offender under Penal Code 290, can face a separate criminal charge and additional penalties.
Related California Offenses for Penal Code 288.2
Penal Code 288 – Lewd Acts with a Minor
Penal Code 288.3 – Contact a Minor to Commit a Felony Crime
Penal Code 288.4 – Arrange Meeting with a Minor for Lewd Purposes
Penal Code 311 – Child Pornography
Penal Code 647.6 – Child Molestation
Penal Code 646.9 – Cyberstalking
Penal Code 261.6 - Statutory Rape
What are the Defenses for Sending Harmful Matter to Minor Charges?
If you have been accused of sending harmful material in violation of California Penal Code 288.2, our Los Angeles criminal lawyers will review the details of the case to determine a best strategy to fight the case.
Mistaken identity -Some of the most common defenses include mistaken identity, especially in a situation where there are allegations that the harmful material was sent through electronic transmission. In some cases, it can be difficult for a prosecutor to prove you actually transmitted the material if it was posted on social media.
Lack of sexual intent – Maybe we can make an argument there was a lack of sexual intent in the communication or a lack of reasonable belief the person you were communicating with was a minor.
No harmful material – Perhaps we could argue the material was not harmful as defined under the statute. Harmful content is generally described as any matter that could be considered obscene.
No intent to seduce – Clearly, it's not illegal for consenting adults to exchange sexual related material. Perhaps we could make a reasonable argument there was no intent to seduce the minor as required in the elements of the crime. This means you were not attempting to persuade a minor to engage in sexual activity.
Penal Code 288.2 is a serious California sex crime that carries severe legal penalties if convicted. Our skilled criminal defense lawyers will aggressively fight to obtain the best possible outcome on the case.
We may be able to negotiate with the prosecutor for a lesser charge or avoid the formal filing of criminal charges through prefiling intervention.
If you are under investigation, or already charges with PC 288.2 sending harmful matter to a minor, call our defense lawyers to review the case and options.
Cron, Israels & Stark is a top-rated criminal defense law firm with decades of combined experience and a record of success. We are located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office at 401 Wilshire Blvd #1200, Santa Monica, CA 90401.