Harmful Matter Sent with the Intent to Seduce a Minor
(California Penal Code 288.2)

California Penal Code 288.2 prohibits sending explicit or "obscene" matter to a minor (that is, a person under 18)

  1. with the intent of sexually arousing yourself and/or the recipient, and
  2. with the intent of seducing the recipient.1

A growing concern over the use of obscene and/or indecent materials such as "sexting" to seduce children prompted the California Legislature to enact Penal Code 288.2 PC in 1989.   This law...known as "harmful matter sent with intent of seduction of minor"...penalized sending "harmful" matter to a child by any means with the intent of seducing that child.2

Even though the statute already banned sending such materials by any means, California still decided specifically to prohibit sending harmful matter via the Internet in 1997.3 This amendment was due to (1) the rapid increase in (and accessibility of) on-line pornography and, (2) the Internet allowing people easy access to exploit and prey on children sexually.

Although police, prosecutors and judges take this offense very seriously, it's not uncommon for innocent people to get charged.  False accusations, rushes to judgment and wrongful arrests are occur frequently when it comes to any allegation that involves children.

In order to help you better understand this offense, our California criminal defense lawyers will provide a comprehensive guide to Penal Code 288.2 PC "sending harmful matter to a minor with the intent to seduce that minor" by addressing the following:

1. How Does the Prosecutor Prove that I Am Guilty of Sending Harmful Matter to a Minor with the Intent of Seducing that Minor?
2. Penalties, Punishment, and Sentencing for Sending Harmful Matter to a Minor Intending to Seduce that Minor
3. A Felony Violation of Penal Code 288.2 PC will Result in a Lifetime Duty to Register as a California Sex Offender
4. California Penal Code 288.2 and its Related Offenses
5. How Do I Fight a California Penal Code 288.2 PC Charge of Sending Harmful Matter to a Minor?

If, after reading this article, you have additional questions, we invite you to contact us.

1. How Does the Prosecutor Prove that I Am Guilty of Sending Harmful Matter to a Minor with the Intent of Seducing that Minor?

By proving the following four facts (otherwise known as "elements of the offense")4:

  1. that you knowingly distributed, sent, exhibited (or offered to distribute, send, or exhibit) any harmful matter to a minor by any means,
  2. knowing that the recipient was a minor (or failing to exercise reasonable care to find out the true age of the recipient),
  3. with the specific intent to arouse the lust, passions, or sexual desire of yourself and/or the minor, and
  4. that you also specifically intended to seduce the minor ("seduce" means to entice the minor to engage in a sexual act involving physical contact between yourself and the minor5).
2. Penalties, Punishment, and Sentencing for Sending Harmful Matter to a Minor Intending to Seduce that Minor

California Penal Code 288.2 is a wobbler, which means that prosecutors can charge it as either a misdemeanor or a felony, depending on (1) the specific facts of the case, and (2) your criminal history.  With respect to this second factor, a second or subsequent violation of this charge is an automatic felony.

If you are convicted of sending harmful matter to a minor with the intent of seducing that minor as a misdemeanor, you face

  • informal (otherwise known as "summary") probation,
  • up to six months in a county jail, and/or
  • a maximum $1,000 fine.6

If you are convicted of sending harmful matter to a minor with the intent of seducing that minor as a felony, you face

In addition, if you are convicted of sending harmful matter to a child via the Internet...regardless of whether you are convicted of a misdemeanor or a felony...your computer may be confiscated and subject to forfeiture.8

3. A Felony Violation of Penal Code 288.2 PC will Result in a Lifetime Duty to Register as a California Sex Offender

Penal Code 290 PC...known as the Sex Offender Registration Act...requires persons convicted of certain California sex crimes to register as a sex offender for life.  While a conviction for sending harmful matter to a minor with the intent of seducing that minor as a misdemeanor doesn't subject you to this requirement, a felony conviction does.

It should also be noted that failure to register as a sex offender under Penal Code 290 PC is a separate felony offense, which may subject you to further penalties.9

4. California Penal Code 288.2 and its
Related Offenses

There are a number of California criminal offenses that are frequently charged in connection with sending harmful matter to a minor with the intent of seducing that minor.  These include (but are not limited to):

Penal Code 288 PC lewd acts with a minor

California Penal Code 288 lewd acts with a minor laws prohibit touching a child under 14 in any way (or under 15 if you are more than 10 years older than the child) if done for the purpose of sexually arousing yourself or the child.10

If you send harmful matter to a child under 14 or 15 with the intent of seducing that child...and then actually make physical contact with that minor...prosecutors will likely charge you with both offenses.

Penal Code 273a child endangerment

California Penal Code 273a child endangerment laws prohibit subjecting a child to (1) mental or physical pain, and/or (2) to subjecting the child to activity where his/her health is endangered.11

Depending on the circumstances...specifically with respect to the nature of the communications...prosecutors could argue that sending harmful matter to a child with the intent of seducing that child also constitutes child endangerment.  This would most likely be charged in connection with a claim that the child's mental health has suffered as a result of the harmful matter and/or other communications.

Penal Code 311 PC child pornography

California Penal Code 311 PC child pornography laws prohibit possessing or distributing child pornography.12 Also referred to as "sexual exploitation of a child"...which is also a form of California child abuse13..."child pornography" is obscene content depicting minors engaged in sexual activity.

If the harmful matter you are accused of sending to a minor contains images of child pornography, prosecutors will likely charge you with both offenses.

Penal Code 646.9 PC cyberstalking

Penal Code 646.9 California's cyberstalking laws prohibit stalking using any electronic communication device.14 If, for example, you are accused of sending unwanted harmful matter to a minor via the Internet or in text messages, prosecutors could charge you for violating Penal Code 288.2 and Penal Code 646.9 PC.

5. How Do I Fight a California Penal Code 288.2 PC Charge of Sending Harmful Matter to a Minor?

There are a variety of defenses that a California sex crimes defense attorney could present on your behalf.  The following is an example of some of the most common:

The matter wasn't harmful

If the matter you sent wasn't harmful, you can't be convicted of this offense.  With respect to a Penal Code 288.2 PC charge, "harmful" is synonymous with "obscene" and means, work that...when taken as a whole,

  1. appeals to the prurient interest in sex ("prurient" means shameful or morbid),
  2. portrays sexual conduct in a patently offensive way,
  3. does not have serious literary, artistic, political, or scientific value,
  4. to a minor.15
Example: A man was charged with exhibiting harmful matter to a child when he briefly watched two television shows while watching TV with a minor.  The first showed a nude woman dancing.  The second portrayed a naked man and a naked woman having sex (the woman was "on top" and the viewer could only see the couple's upper bodies).

The court held that these programs did not constitute "harmful" matter with respect to a California Penal Code 288.2 charge.  It ruled that neither nudity nor sexual activity are, per se, obscene, even to minors.  It further held that neither of the specific TV clips rose to the level of obscene matter.16

You didn't intend to seduce the minor

Similarly, if you didn't send harmful matter to a minor with the intent of seducing that minor, you can't be convicted of Penal Code 288.2 PC.  This means that, even if the matter you sent was, in fact, harmful, you still must be acquitted of this charge if you didn't intend to seduce the minor to whom you sent it.

With respect to sending harmful matter to a child with the intent of seducing that child, "seduce" means to entice the minor to engage in a sexual act involving physical contact between yourself and the minor.17 Sexual activity that does not involve contact between you and the minor does not qualify as "seduction" for Penal Code 288.2's purposes.

Example: A man was charged with sending harmful matter via the Internet to minors with the purpose of seducing those minors.  The matter that the defendant sent to the minors qualified as "harmful".  Photos sent over the Internet included (1) a man being simultaneously orally copulated and sodomized, and (2) one of the defendant naked with an erect penis.  E-mail content included countless overt sexually explicit questions and responses via on-line communication.

However, the defendant had to be acquitted of the Penal Code 288.2 PC charge because the prosecutor could not prove the "seduction" element.  The defendant never met either of the minors, and only encouraged them to masturbate by themselves.  Evidence that the defendant intended to entice the minors to masturbate did not satisfy the requirement that he intended to seduce the minors.18

False accusations

As with any offense that involves minors, Penal Code 288.2 PC involves a large number of false accusations that lead to wrongful arrests.  Perhaps a minor has made advances that you rejected.  Perhaps a child's parents suspect that you are involved with his/her child and wants to put an end to the contact.

As widely respected Los Angeles criminal defense lawyer John Murray explains19, "There are so many reasons why an individual may be falsely accused of this offense.  Anger, revenge, or even parental caution are just some of the motives that may lead a parent or child to accuse an otherwise innocent individual of this charge."

The matter was for legitimate scientific or educational purposes

Two Penal Code 288.2 PC defenses that are related to each other include:

  1. that a parent or guardian displayed the matter for a legitimate sex education purpose, or
  2. that anyone sent the matter for a legitimate scientific or educational purpose.20

Examples include (but are not limited to) school text books or videos and medical journals.

Similarly, phone companies, cable providers, and Internet service providers, etc. are exempt from prosecution for this offense when they carry, transmit, or send these images while conducting their routine business.21

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If you or loved one is charged with Penal Code 288.2 harmful material towards minors and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

1California Penal Code 288.2 - Harmful matter sent with the intent to seduce a minor.  ("(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in [California Penal Code] Section 313 PC, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony. (b) Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet, as defined in Section 17538 of the Business and Professions Code, or a commercial online service, any harmful matter, as defined in [California Penal Code] Section 313 PC, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony. (c) It shall be a defense to any prosecution under this section that a parent or guardian committed the act charged in aid of legitimate sex education. (d) It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes. (e) It does not constitute a violation of this section for a telephone corporation, as defined in Section 234 of the Public Utilities Code, a cable television company franchised pursuant to Section 53066 of the Government Code, or any of its affiliates, an Internet service provider, or commercial online service provider, to carry, broadcast, or transmit messages described in this section or perform related activities in providing telephone, cable television, Internet, or commercial online services.")

2California Assembly Bill 1008 (enacted in 1989):  The people of the State of California do enact as follows: CA PENAL � 288.2 SECTION 1. Section 288.2 [sending harmful matter to a minor with the intent of seducing the minor] is added to the Penal Code, to read: 288.2. (a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in [California Penal Code] Section 313 PC, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, with the intent, or for the purpose of seducing the minor, is guilty of a public offense punishable by imprisonment in the state prison or in the county jail. Upon the second and each subsequent conviction for a violation of this subdivision [that is, sending harmful matter to a child with the intent of seducing that child], a person so convicted is guilty of a felony. (b) It shall be a defense to any prosecution under this section that a parent or guardian committed the act charged in aid of legitimate sex education. (c) It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes. (d) It does not constitute a violation of this section for a telephone corporation, as defined by Section 234 of the Public Utilities Code, to carry or transmit messages described in this section or perform related activities in providing telephone services.")

3California Assembly Bill 181 (enacted 1997): Existing law makes it a crime for a person, with knowledge that a person is a minor, or who fails to exercise reasonable care to know the minor's age, to knowingly distribute harmful matter by any means, including telephone, to a minor for the purpose of seducing the minor and exempts a telephone corporation from the provisions of this law. This bill, in addition, would expressly make it a crime for every person who, with knowledge that a person is a minor, knowingly distributes or exhibits by electronic mail, the Internet as defined, or a commercial online service, any harmful matter, as defined, to any minor for the purpose of seducing a minor. This bill would also expand the list of service providers exempt from this law.")

4California Jury Instructions - Criminal.  CALJIC 10.58 -- CALJIC 10.58 Harmful Matter Sent With Intent of Seduction of Minor.  ("In order to prove this crime, each of the following elements must be proved: [1] A person knowingly distributed, sent, caused to be sent, exhibited, or offered to distribute or exhibit [by any means, including, but not limited to, live or recorded telephone messages] [by electronic mail, the Internet, or a commercial online service] any harmful matter to a minor; [2] That person knew that a recipient of the message was a minor [, or failed to exercise reasonable care to ascertain the true age of the recipient of the message]; [3] That person did so with the specific intent to arouse, appeal to, or gratify the lust or passions or sexual desires of that person or the minor; and [4] That person also specifically intended to seduce a minor, by enticing the minor to engage in a sexual act involving physical contact between the perpetrator and the minor.")

5People v. Jensen (2003) 114 Cal.App.4th 224, 239.  ("...the "seducing" intent element of the offense [that is, Penal Code 288.2 PC harmful matter sent with the intent of seducing a minor] requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor.")

6California Penal Code 19 PC -- Punishment for misdemeanor; punishment not otherwise prescribed.  ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")

7California Penal Code 18 PC -- Punishment for felony not otherwise prescribed...("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years.")  See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")  See also California Penal Code 290 (the Sex Offender Registration Act) which was amended in 1989 to include felony violations of Penal Code 288.2 PC.

8California Penal Code 502.01 sets forth a variety of offenses...including Penal Code 288.2 PC sending harmful matter to a minor with the intent of seducing that minor...that subject an offender to having a computer, computer system, or software program that was used to commit the offense seized and forfeited.

9When an individual fails to register as a sex offender pursuant to California Penal Code 290 PC, he/she faces up to one year in county jail or up to three years in the state prison.  Failing to register is a "continuing" offense, which means that each time you violate one of your duties to register, you commit a separate offense.  As a result, failing to register as a sex offender can result in a substantial prison sentence.

10California Penal Code 288 -- Lewd or lascivious acts; penalties; psychological harm to victim.  ("(a) Any 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...")

11California Penal Code 273a - Child endangerment.  ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor...")

12California child pornography laws under California Penal Code 311 and its related sections prohibit: distributing child pornography, employing minors to participate in or help produce child porn, possessing child porn, advertising child pornography, and developing, duplicating, printing, or exchanging child porn.  For purposes of California child pornography laws, a "child" is anyone under 18, unless he/she is an emancipated minor or involved in lawful conduct between spouses when either or both of the individuals are under 18.

13California Penal Code 273d - California child abuse.  ("(a) Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine...")  While this is the prominent California "child abuse" law, there are a variety of acts that typically fall under the umbrella of child abuse...sexually exploiting of a child is one of them.

14California Penal Code 646.9 - Cyberstalking.  ("(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison...(g) For the purposes of this section, "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device...(h) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers....")

15People v. Dyke (2009) 172 Cal.App.4th 1377, 1383.  ("Thus, the modern Miller [Miller v. California (1973) 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419] standard and the current definition of "harmful matter" in section [California Penal Code] 313 PC are virtually identical, with the exceptions that under section 313 the relevant community standard by which the material is evaluated is "statewide" and, in context, the work must lack serious literary, artistic, political, or scientific value for minors. In essence, then, to fall within the terms of [California Penal Code] section 288.2 PC, subdivision (a), the material exhibited to the minor must be "obscene" as defined by Miller, except that its socially redeeming values must be of a nature that can be appreciated by a minor.")

16See same at 1385. ("First, applying a contemporary adult standard, nudity alone is not per se obscene (see Jenkins v. Georgia (1974) 418 U.S. 153, 161, 94 S.Ct. 2750, 41 L.Ed.2d 642), and the high court has stated that "all nudity cannot be deemed obscene even as to minors"... Likewise, portrayals of sexual activity are not ipso facto obscene...There is only a bare-bones recital by A.S. [the minor] of what she saw: a nude woman dancing and a naked couple having sex, shown from the waist up, and her own characterization of it as "pornography." Without more, neither we nor the jury are permitted to presume that such content is patently offensive to the average adult, applying statewide community standards.") Because of this logic, the defendant couldn't be convicted of Penal Code 288.2 PC sending harmful matter to a minor with the intent of seducing the minor.

17People v. Jensen (2003) 114 Cal.App.4th 224, 239.  ("Although "seduce," as Hsu [People v. Hsu (2000) 82 Cal.App.4th 976, 99 Cal.Rptr.2d 184] notes, can mean simply "to lead astray," it is also defined as "persuading into partnership in sexual intercourse." (Webster's 3d New Internat. Dict. (1981) p.2054.)  In the context of [California Penal Code] section 288.2 PC, subdivision (b), with its references to gratifying lust, passion, and sexual desire, people of ordinary intelligence (see Beauharnais v. Illinois (1952) 343 U.S. 250, 253, 72 S.Ct. 725, 96 L.Ed. 919) would readily understand "seducing" as used here to mean the latter definition.")

18See same.  ("We agree with Hsu that, as used in Penal Code section 288.2, subdivision (b), the word "seducing" was not intended to have the vague meaning of "lead[ing] astray" (Webster's Collegiate Dict. (10th ed.1999) p. 1057) but to have the precise meaning of "carry[ing] out the physical seduction of: entic[ing] to sexual intercourse." (Webster's Collegiate Dict. (10th ed.1999) p. 1057.) And, in this context, "sexual intercourse" clearly refers to "intercourse involving genital contact between individuals" rather than "heterosexual intercourse involving penetration of the vagina by the penis." (Webster's Collegiate Dict. (10th ed.1999) p. 1074.) Thus, the "seducing" intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor. Intending to entice a male minor to masturbate himself does not satisfy this "seducing" intent element of [California] Penal Code section 288.2, subdivision (b) [that is, sending harmful matter to a child intending to seduce that child.")

19Los Angeles criminal defense lawyer John Murray defends his clients accused of California crimes in Los Angeles, the South Bay, and Orange County.

20California Penal Code 288.2 - Harmful matter sent with the intent to seduce a minor.  ("(c) It shall be a defense to any prosecution under this section that a parent or guardian committed the act charged in aid of legitimate sex education. (d) It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes.")

21California Penal Code 288.2 - Harmful matter sent with the intent to seduce a minor.  ("(e) It does not constitute a violation of this section for a telephone corporation, as defined in Section 234 of the Public Utilities Code, a cable television company franchised pursuant to Section 53066 of the Government Code, or any of its affiliates, an Internet service provider, or commercial online service provider, to carry, broadcast, or transmit messages described in this section or perform related activities in providing telephone, cable television, Internet, or commercial online services.")

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