Penal Code 288.2 PC makes it a crime to send, distribute or exhibit harmful or obscene material to a minor under the age of 18, with the intent to sexually arouse and have sex with the minor. The offense is a wobbler that can be charged as a misdemeanor or a felony. A conviction triggers a lifetime duty to register as a tier-three sex offender.
288.2 PC states that “every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes…any harmful matter…with the intent of arousing…the sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse…is guilty of a misdemeanor…or is guilty of a felony.”
- sending a minor email with sexual images with an intent to seduce sex with the minor.
- sharing a pornographic video with a minor with the intent to “act it out.”
- sexting, or swapping text messages with a minor, of sexual content, with the hope of arousing and having sex with that person.
A defendant can raise a legal defense to dispute a charge under this code section. Some defenses include:
- the accused did not send “harmful” material,
- the defendant did not act with criminal intent, and
- the defendant was falsely accused.
A violation of Penal Code 288.2 is a wobbler. This means a prosecutor can charge it as either a misdemeanor or a felony.
A misdemeanor conviction is punishable by imprisonment for up to one year in county jail.
A felony conviction is punishable by custody in a California state prison for up to three years.
Our California criminal defense attorneys will explain the following in this article:
- 1. When is it a crime to send obscene material to a minor?
- 2. What are the best defenses to a 288.2 charge?
- 3. What is the potential sentence?
- 4. What are the consequences for non-citizens?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. When is it a crime to send obscene material to a minor?
A prosecutor must prove the following to convict a person under this statute:
- the accused knowingly distributed, sent, or exhibited any “harmful material” to a minor by any means (including electronic communication),
- when the defendant acted, he/she knew, or should have known, that the recipient was a minor (or failed to exercise reasonable care to ascertain the child’s age),
- when the defendant acted, he/she did so with the intent to arouse the lust, passions, or sexual desire of himself/herself and/or the minor, and
- when the accused acted, he intended to engage in sexual intercourse, sexual activity, or oral copulation with the minor.1
The state does not have to show that there was any actual physical contact or sexual contact between the defendant and the minor.
California law says that material is “harmful” if, when considered as a whole:
- it shows or describes sexual conduct in an obviously offensive way,
- a reasonable person would conclude that it lacks serious literary, artistic, political, or scientiﬁc value for minors, and
- an average adult person would conclude that it appeals to a “prurient interest.”2
A “prurient interest” is a deplorable interest in nudity, sex, or excretion.3
Note that with regard to the second condition on harmfulness, it means that material is not harmful if it carries legitimate educational purposes.4
2. What are the best defenses to a 288.2 charge?
Defense lawyers can use several legal strategies to contest a charge under these laws. These include showing that:
- the accused did not send “harmful” material.
- the accused did not act with criminal intent.
- the defendant was falsely accused.
2.1. No harmful material
Recall that a person is only guilty under Penal Code section 288.2 if he/she sent “harmful” material to a minor. Further, this term has a precise legal meaning under the statute.
This means that it is always a defense for an accused to show that:
- he/she distributed material to a minor, but
- it was not a harmful matter.
2.2. No criminal intent
Recall that, under these laws, a prosecutor has to prove that a defendant acted with both:
- the intent to sexually arouse himself/herself or the minor, and
- the intent of seducing the minor to have sex.
A defense, therefore, is for an accused to show that he/she did not act with such requisite intent. Perhaps, for example, a relative showed a minor a photograph of a half-naked adult for legitimate sex education or to explain a part of the body.
2.3. Falsely accused
As with any offense that involves minors, Penal Code 288.2 involves a large number of false accusations that lead to wrongful arrests. A false accusation might be made by:
- a minor that made advances on the accused and the accused rejected them, or
- a child’s parents who want to put an end to another adult having contact with their child.
Anger and revenge are other sources that could lead one to unjustly accuse a person.
3. What is the potential sentence?
A violation of this statute is a wobbler offense. This means a prosecutor can charge it as either a misdemeanor or a felony.
A misdemeanor conviction is punishable by:
- imprisonment for up to one year in county jail, and/or
- a maximum fine of $1,000.5
A felony conviction is punishable by:
- custody in state prison for up to three years, and/or
- a maximum fine of $10,000.6
A felony conviction also results in a lifetime duty to register as a sex offender as a tier-three offender. Sex offender registration is mandated under Penal Code 290 PC.
4. What are the consequences for non-citizens?
A conviction under these laws may have negative immigration consequences.
California law says that aggravated felonies can result in a non-citizen defendant being:
Aggravated felonies are severe felonies. The facts of a case determine whether or not a felony is “aggravated.”
Therefore, a conviction under this statute will have negative immigration results in cases with grave facts.
5. Can a person get a conviction expunged?
A person can get a conviction expunged if:
- the conviction was for a misdemeanor, and
- the defendant successfully completed either a jail term or probation.
A person, though, cannot get a felony conviction expunged. Expungements are not allowed for crimes that lead to prison terms.
6. Does a conviction affect gun rights?
A misdemeanor conviction will not affect a person’s gun rights.
Felony convictions, though, will cause a defendant to lose his/her rights to:
- buy a gun,
- own a gun, and
- possess a gun.
California law says that convicted felons must give up their gun rights.
7. Are there related offenses?
There are three crimes related to sending obscene material to a minor. These are:
- lewd acts with a minor – PC 288,
- child endangerment – PC 273a, and
- child pornography – PC 311.
7.1. Lewd acts with a minor – PC 288
Penal Code 288 PC is the California statute that makes it a sex crime for a person to commit a lewd act with a minor.
A “lewd act” is one done with a lewd purpose. It may include either:
- touching a child for sexual purposes, or
- causing a child to touch him/herself or someone else for a sexual purpose.
7.2. Child endangerment – PC 273a
Penal Code 273a PC is the California law that defines the crime of child endangerment.
A person commits this offense if he/she willfully exposes a child under 18 to unjustifiable:
- suffering, or
7.3. Child pornography – PC 311
Penal Code 311 PC sets forth California’s child pornography laws. It is a crime under this statute for a person to send, transport, duplicate, print, advertise or possess child pornography.
It is also an offense to hire or persuade minors to participate in making pornographic imagery.
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. Our law firm represents people across California, including Los Angeles, Orange, and San Diego Counties.
For information on a similar crime in Nevada, please see our article on: “Exhibition and Sale of Obscene Materials to Minors in Nevada Law (NRS 201.265).”
- CALCRIM No. 1140 – Showing or Sending Harmful Material to Seduce a Minor. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Jensen (2003) 114 Cal.App.4th 224; and, People v. Garelick (2008) 161 Cal.App.4th 1107.
- CALCRIM No. 1140. See also People v. Jensen, supra; and, People v. Deng, 2014 Cal. App. Unpub. Lexis 3627.
- CALCRIM No. 1140.
- People v. Mower (2002) 28 Cal.4th 457. See also People v. Woodward (2004) 116 Cal.App.4th 821.
- California Penal Code 288.2 PC. See also California Penal Code 19 PC.
- California Penal Code 288.2 PC. See also California Penal Code 1170h PC.