§ 288.2 PC – Sending Harmful Material to Seduce a Minor

Penal Code § 288.2 PC makes it a crime to send, distribute or exhibit harmful or obscene material to a minor (under 18) with the intent to engage in sexual intercourse, sodomy, oral copulation, or sexual contact with the minor.

The offense is a wobbler that can be charged as either

• a misdemeanor or
• a felony.

A conviction is punishable by:

• up to 3 years in jail or prison, and
• a lifetime duty to register as a tier-three sex offender.

The language of the code section reads:

288.2. (a) (1) Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or is guilty of a felony, punishable by imprisonment in the state prison for two, three, or five years.

Examples

• 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.

Our California criminal defense attorneys will explain the following in this article:

• 1. Elements of the Crime
• 2. Defenses
• 3. Penalties
• 4. Immigration Consequences
• 5. Expungements
• 6. Gun Rights
• 7. Related Offenses
• Additional Reading

1. Elements of the Crime

To convict you of sending harmful material to seduce a minor in California, prosecutors must prove beyond a reasonable doubt the following elements of the jury instructions:

1. You knowingly distributed, sent, or exhibited any “harmful material” to a minor by any means (including electronic communication),
2. When you acted, you knew, or should have known, that the recipient was a minor (or failed to exercise reasonable care to ascertain the child’s age),
3. When you acted, you did so with the intent to arouse the lust, passions, or sexual desire of yourself and/or the minor, and
4. When you acted, you intended to engage in sexual intercourse, sexual activity, or oral copulation with the minor.¹

PC 288.2 does not require the state to show that there was any actual physical contact or sexual contact between you and the minor.

California law says that material is “harmful” if, when considered as a whole:

1. it shows or describes sexual conduct in an obviously offensive way,
2. a reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors, and
3. 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. Defenses

Here at Shouse Law Group, we have represented literally thousands of people facing child sex crime charges, including sending harmful material to seduce a minor. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.

There Was No Harmful Material

What qualifies as “harmful material” has a precise meaning. Perhaps police wrongly believed the material in question was harmful.

In this situation, we would find past court cases that support the view that the material in your case falls outside the bounds of what is considered harmful. Once we present these cases to the prosecutors, they may realize there is “reasonable doubt” and drop the charge.

You Had No Criminal Intent

Claiming you had no intent to seduce the minor or arouse yourself is a strong defense because intent is invisible: Prosecutors have no way of getting inside of your head.

Perhaps, for example, you showed a minor a photograph of a half-naked adult for legitimate sex education or to explain a part of the body.

If we can show the D.A. that nothing you did was to pleasure yourself, they may agree to dismiss the charge for lack of proof.

You Were 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 at you, and you rejected them, or
• your ex who wants to put an end to you having contact with your child.

Anger and revenge are other sources that could lead someone to unjustly accuse you.

Valuable evidence we rely on in these cases includes recorded communications, eyewitnesses, alibis, and video surveillance footage. Once we impeach the accuser’s credibility and reveal their motivation to lie, prosecutors may decide to drop your case completely.

3. Penalties

A violation of PC 288.2 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. Immigration Consequences

A conviction under these laws may have negative immigration consequences. Non-citizens facing PC 288.2 charges should consult with an attorney as soon as possible in attempt to get the charges dropped or changed to something that is not deportable.

5. Expungements

You can get a conviction expunged if:

1. the conviction was for a misdemeanor, and
2. you completed either a jail term or probation.

However, there may be barriers to getting a felony conviction expunged. Speak with your lawyer.

6. Gun Rights

A misdemeanor conviction will not affect your gun rights. Felony convictions, though, will cause you to lose your rights to:

• buy a gun,
• own a gun, and
• possess a gun.

7. Related Offenses

There are three crimes related to sending obscene material to a minor. These are:

1. lewd acts with a minor – PC 288,
2. child endangerment – PC 273a, and
3. child pornography – PC 311.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The corroboration requirement in child sex abuse cases – Behavioral Sciences & the Law.
• Child Pornography’s Forgotten Victims – Pace Law Review.
• The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It – Miami Law Review.
• The Time Has Come for a Restatement of Child Sex Abuse – Brooklyn Law Review.
• Child Sex Abuse Victims: How Will Their Stories Be Heard after Crawford v. Washington – Campbell Law Review.

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