California child molestation laws make it a crime for a person to engage in, or attempt to engage in, sexual acts with a minor under 18 years of age. Depending on the age of the minor and the nature of the sexual contact, consequences can range from misdemeanor charges to felony charges and life in prison.
State child molestation crimes are defined in Penal Code Sections 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 647.6, and 261.5. The term “minor” is defined differently among the statutes. Unless otherwise specified, though, it means a person under the age of 18.
- Penal Code 288 PC makes it a crime for a person to commit a lewd act on a child under the age of 16. A “lewd act” includes:
- touching a child for sexual purposes, or
- causing a child to touch him/herself or someone else for a sexual purpose.
- Penal Code 288a PC makes it a crime for a person to perform oral copulation on a minor under the age of 18. “Oral copulation” is any contact between the mouth of one person and the sexual organ or anus of another.
- Penal Code 288.2 PC prohibits sending explicit or obscene matter to a minor under 18 with the intent of:
- sexually arousing the sender and/or the recipient, and
- seducing the recipient.
- Penal Code 288.3 PC says it is a crime for a person to contact a minor with the intent to commit a felony. A felony here means a serious felony or a California sex crime.
- Penal Code 288.4 PC makes it a crime for a person to arrange a meeting with a minor with the intent to engage in certain sexual conduct.
- Penal Code 288.5 PC is the California statute that makes it a crime for a person to engage in the continuous sexual abuse of a child under 14 years of age. This means three or more instances of abuse occurring over a duration of three months or longer.
- Penal Code 288.7 PC says it is a crime when an adult engages in sexual acts with a child under 10 years of age.
- Penal Code 647.6 PC criminalizes the act of annoying a minor under the age of 18. “Annoy” refers to conduct that is:
- motivated by a sexual interest in a child, and
- which is likely to disturb, irritate or be observed by a child.
- Penal Code 261.5 PC defines the crime of unlawful sex with a minor. This offense takes place when any person engages in sexual intercourse with a person under the age of 18. (Note that the age of consent to have sex in California is 18 years of age).
A defendant can raise a legal defense to beat a child molestation charge. A few common defenses are:
- the alleged “victim” does not meet the age criteria for the crime,
- any contact was not sexual in nature, and/or
- the accuser made a false accusation.
- county jail, or
- a California state prison.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What are the best defense strategies in a child molestation case?
- 1.1. The alleged “victim” does not meet the age criteria for the crime
- 1.2. Any contact was not sexual in nature
- 1.3. The accuser made a false accusation
- 2. What are the potential consequences?
- 3. Will these crimes lead to deportation?
- 4. Can a person get a conviction expunged?
- 5. Does a conviction affect a person’s gun rights?
- 6. Are there related offenses?
1. What are the best defense strategies in a child molestation case?
Defense lawyers draw on several legal strategies in attacking child molestation charges. These include showing that:
- the alleged “victim” does not meet the age criteria for the crime.
- to the extent that there was contact with a minor, it was not sexual in nature.
- The accuser made a false accusation.
1.1. The alleged “victim” does not meet the age criteria for the crime
All of California’s child molestation laws require that a perpetrator commit a prohibited act against a “minor.” A “minor” under these statutes usually refers to someone under the age of 18. However, some statutes say a minor is someone of a different age (e.g., under 14, or under 10).
Given these different ages, a defense can be crafted that focuses on the victim’s age. The defense says that the person harmed did not meet the age criteria under the statute in question.
Example: Penal Code 288 punishes people when they commit a lewd act on someone under the age of 16. A defense, then, is for the accused to show that, while he may have committed a lewd act, it was done on a person that was over 16.
1.2. Any contact was not sexual in nature
Many of the child molestation statutes require that a defendant touch a minor in a sexual manner. This means it is a valid defense for a defendant to say that:
- he did contact a minor, but
- that contact was not sexual in nature.
Perhaps, for example, an accused bumped into a minor while playing a game.
1.3. The accuser made a false accusation
Sometimes a child gets touched inappropriately but is confused about the identity of the perpetrator. This is especially common when:
- the defendant was unknown to the child,
- the touching took place in dark or unfamiliar place,
- the perpetrator was a different race than the defendant, or
- the child was very young.
All of these can lead to false accusations. A child can also wrongfully blame a person out of:
- an ulterior motive, or
- adult manipulation.
No matter the reasoning behind the child’s acts, a defendant can always assert that he was unjustly blamed.
2. What are the potential consequences?
A violation of PC 288 can be charged as a misdemeanor or a felony depending on the facts. A misdemeanor is punishable by up to one year in county jail. A felony charge could lead to a life sentence in state prison.
A violation of PC 288a can be charged as either a misdemeanor or a felony. The facts of the case will determine how the offense is charged. If a misdemeanor, the offense is punishable by up to one year in county jail. If a felony, the crime is punishable by up to eight years in state prison.
A violation of PC 288.2 is a wobbler offense. This means it can be charged as either a misdemeanor or a felony. If a misdemeanor, the crime is punishable by up to six months in county jail. If charged as a felony, the offense is punishable by up to three years in state prison.
A violation of PC 288.3 requires that the offender contact a minor with the intent to commit a certain felony. The penalties for the crime are the same as those for the felony that the defendant wanted to commit.
Most violations of PC 288.4 are charged as a misdemeanor. Penalties include imprisonment in county jail for up to one year. The offender will also be required to register as a tier one sex offender.
A violation of PC 288.5 is charged as a felony. Penalties can be as high as 16 years in state prison.
A violation of PC 288.7 can trigger a sentence of life in prison. This is true even with a first offense.
Violations of PC 647.6 are charged as misdemeanors. The crime is punishable by custody in county jail for up to one year.
A violation of PC 261.5 is a wobbler offense. The maximum punishment includes up to four years in state prison.
Moreover, a conviction for any of these crimes other than PC 261.5 will require registration as a sex offender.
3. Will these crimes lead to deportation?
A conviction under these laws may have negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
Many of California’s child molestation offenses are considered these types of offenses. Therefore, a conviction will hurt a person’s immigration status.
4. Can these convictions later be expunged?
A person can get a conviction of these laws expunged if the crime is charged as a misdemeanor.
California law says that a felony conviction leading to a prison term cannot get expunged.
However, an expungement is available for misdemeanor convictions.
This is provided that the defendant successfully completes:
- a jail term, or
- probation (whichever was imposed).
5. Does a conviction affect a person’s gun rights?
A conviction may affect the convicted party’s gun rights.
According to California law, convicted felons are prohibited from:
- buying a gun, or
- possessing a gun.
Recall that a violation of one of these laws may result in a felony charge. If this happens, and there is a conviction, a defendant will lose his gun rights.
6. Are there related offenses?
There are three crimes related to child molestation. These are:
- child pornography – PC 311,
- sexual battery – PC 243.4, and
- kidnapping – PC 207
6.1. Child pornography – PC 311
Penal Code 311 PC and subsections are California’s child pornography laws.
These sections make it a crime for a person to either:
- send, transport, duplicate, print, exchange, advertise or possess child pornography, or
- hire or persuade minors to participate in making pornographic imagery.
For purposes of these laws, “child pornography” is defined as:
- any matter or material,
- depicting sexual conduct,
- by a person under the age of 18.
6.2. Sexual battery – PC 243.4
Penal Code 243.4 PC is California’s sexual battery statute.
The law prohibits touching the intimate part of another person for purposes of sexual:
- arousal, or
6.3. Kidnapping – PC 207
Penal Code 207 PC is the California statute that defines the crime of kidnapping.
A person commits this offense by:
- moving another person,
- a substantial distance,
- without the person’s consent, and
- by using force or fear.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
See INA 237 (a) (2) (A).