Penal Code § 288.3 PC – Contacting a Minor to Commit a Felony

Penal Code § 288.3 PC makes it a crime to contact or communicate with a person under the age of 18, having reason to know that the person is a minor, with the intent to commit a sex crime or other serious felony involving that minor.

The underlying felony offenses that can support PC 288.3 charges are:

• kidnapping,
• rape,
• child endangerment,
• sodomy,
• lewd acts with a child under 14,
• oral copulation by force or fear,
• oral copulation with a minor,
• sending harmful material to a minor,
• forcible sexual penetration (with a foreign object), and
• certain child pornography crimes.

In order to help you better understand the law, our California criminal defense attorneys will explain the following:

• 1. What does it mean to contact a minor intending to commit a felony?
• 2. What are the consequences of a Penal Code 288.3 conviction?
• 3. How can a defense lawyer fight this charge?
• 4. Related Offenses
• Additional resources

1. What does it mean to contact a minor intending to commit a felony?

The legal definition of contacting a minor with intent to commit a felony, California Penal Code 288.3, consists of several “elements of the crime.” These are facts that a jury in a California jury trial must find to be true—beyond a reasonable doubt—for you to be guilty of this offense.

Elements of The Crimes

The elements of contacting a minor intending to commit a felony are:

1. You directly or indirectly contacted or communicated with, or attempted to contact or communicate with, a child under 18 years old;
2. When you did so, you planned to commit one of the offenses involving a minor that Penal Code 288.3 PC lists; and
3. You knew or reasonably should have known that the person was a minor.²²

This law is often enforced through sting operations involving undercover officers (usually on the internet) who are only pretending to be minors. So in many cases, you did not actually communicate with a minor—but instead communicated with someone you believed to be a minor.¹

Underlying offenses

You are only guilty of contacting a minor with intent to commit a felony if the prosecution can prove that you intended to commit one of the offenses California Penal Code 288.3 lists:

Underlying offense for PC 288.3 charge	Legal definition
Kidnapping	The crime of California kidnapping consists of moving another person a substantial distance, without that person’s consent, and by use of force or fear. The crime of kidnapping can also be committed without the use of force or fear—IF The victim is under fourteen (14) years of age; You use false promises or misrepresentations to persuade the victim to go with you; and You are kidnapping the victim in order to commit a sex crime against them.2
Rape	Penal Code 261 PC rape is the act of sexual intercourse without the other person’s consent. This can mean: That it is accomplished through force, violence, duress, threats, or fraud; or That the victim is unable to consent (for example, because they are too intoxicated or have a mental or physical disability).3
Child endangerment	Penal Code 273a child endangerment is defined as causing, permitting, or inflicting unjustifiable physical pain or mental suffering on a child.4
Illegal acts of sodomy	Penal Code 286 PC, California’s sodomy law, makes it a crime to: Force someone to engage in sodomy (anal sex) without their consent, or Engage in sodomy (anal sex) with a minor.5
Lewd acts with a child under 14	Penal Code 288 lewd acts with a child is the act of touching a minor anywhere on their body for sexual purposes. This law only applies to lewd acts committed with a minor who is under fourteen (14) years old.6
Oral copulation	Penal Code 287 makes it a crime to engage in either: Non-consensual oral sex (also known as “oral copulation by force or fear”); or Consensual oral sex with a minor.7
Sending harmful material to a minor	California’s law against “harmful material sent with the intent to seduce a minor” makes it a crime to send “obscene” matter to anyone under 18—with the intent to sexually arouse yourself or them, and with the ultimate goal of engaging in sexual activity with them.8
Forcible sexual penetration with a foreign object	Penal Code 289 PC forcible sexual penetration with a foreign object is the crime of either: Nonconsensual sexual penetration with a foreign object, accomplished through force, violence, duress, fear, or threats; or Consensual sexual penetration with a minor under 18.9
Child pornography	The potential underlying offenses supporting a Penal Code 288.3 contacting a minor with intent to commit a felony charge include the California child pornography crimes of: Penal Code 311.1 and 311.2 PC sending, transporting, producing, possessing or duplicating any child pornography with intent to distribute it; Penal Code 311.4 PC hiring, employing, using, persuading, or coercing a minor to participate in the production of child porn; and Penal Code 311.11 PC possessing or controlling child pornography.10

2. What are the consequences of a Penal Code 288.3 conviction?

The penalty for contacting a minor with intent to commit a felony will be the same as the potential penalty for the underlying offense you are alleged to have intended.

In most cases, these will be felony offenses. The potential penalties will include:

• Felony (formal) probation;
• A fine of up to ten thousand dollars ($10,000); and/or
• A sentence in California state prison.¹¹
  

In addition, if you have previously been convicted of a violation of Penal Code 288.3 PC, then for any future violation, your potential state prison sentence will be increased by an additional and consecutive five (5) years.¹²

Sex offender registration requirement

A conviction for contacting or communicating with a minor with intent to commit a felony will subject you to the registration requirement of California’s Sex Offender Registration Act (Penal Code 290 PC). In the majority of cases, you will be mandated to register as a tier three offender, which requires lifetime registration.

In some cases, you will be mandated to register as a tier two offender, which requires a 20-year minimum registration requirement. If you are a tier one offender, you have a 10-year minimum registration requirement.¹³

Example sentences

The potential sentence will depend on the underlying offense. Some examples are:

• Seven (7) to thirteen (13) years for contacting a minor with intent to commit forcible sodomy on them;¹⁴
• Three (3), six (6) or eight (8) years for contacting or communicating with a minor with intent to commit lewd acts on a child under 14;¹⁵ and
• Anywhere from sixteen (16) months to eight (8) years (depending on the ages of the minor and you) for contacting or communicating with a minor with intent to engage in consensual oral sex with them.¹⁶

3. How can a defense lawyer fight this charge?

Here at Shouse Law Group, we have represented literally thousands of people accused of crimes involving children including contacting or communicating with a minor with intent to commit certain felonies. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries.

You did not intend to commit one of the underlying offenses

Maybe you contacted or communicated with a minor. Maybe you even had a romantic or sexual interest in them.

The fact that you communicated with the minor does not necessarily prove that you intended to commit a crime—even if there was sexual content in your communications.¹⁸

Even arranging a meeting with them does not necessarily prove that you contacted them with intent to commit a crime—particularly if the meeting was supposed to be in a public place.

We find “lack of intent” to be the most effective defense since prosecutors have no way to definitively prove what is going on in your head. As long as we can raise a reasonable doubt, criminal charges cannot stand.

You did not know that the person you contacted or communicated with was a minor

If you actually and reasonably believed the “victim” was over 18, we would present such evidence as:

• The so-called “victim” lied to you about their age;
• You met the so-called victim in a location where one does not expect to meet minors (for example, a bar or a concert restricted to people over 21); and/or
• The “victim” looked or acted unusually mature.¹⁹

We have seen many 288.3 PC cases where minors easily passed for adults, resulting in the D.A. ultimately dismissing the charge before trial.

You were a victim of entrapment

Entrapment – which is illegal – occurs when a police officer behaves in an overbearing way, and as a result, you engage in behavior you otherwise would not have.

Entrapment can occur when law enforcement officers talk you into doing something through:

• Pressure;
• Harassment;
• Fraud;
• Flattery; or
• Threats.²⁰

It is very typical to be charged with contacting a minor with intent to commit a felony after being caught in an internet sting operation conducted by undercover officers. Officers who pose as minors go online and flirt aggressively with potential targets.

In these cases, we use the police’s bodycam footage against them to show that they crossed the line from trickery to entrapment. As long as we can show that you would not have committed the crime but for the police’s pressure, the charge should be dropped.

4. Related offenses

If you are charged with contacting a minor with intent to commit a felony, you may want to be aware of the following related offenses:

Penal Code 288.4 arranging a meeting with a minor for lewd purposes

Penal Code 288.4 PC “arranging a meeting with a minor for lewd purposes” is a very similar offense to Penal Code 288.3 PC.

This law, passed at the same time as PC 288.3, makes it a crime to:

1. Arrange a meeting with a minor;
2. While motivated by an unnatural or abnormal sexual interest in children;
3. With the intent to expose your or the minor’s genitals, or engage in lewd acts with the minor, at the meeting.

Like communicating with a minor with the intent to commit a felony, arranging a meeting with a minor for lewd purposes is an attempted crime that may be charged even if you never actually engage in sexual conduct with a minor.²¹

Penal Code 261.5 statutory rape

Penal Code 261.5 statutory rape is the crime of engaging in consensual sexual intercourse with a minor.

One notable thing about statutory rape is that it is not on the list of underlying felonies that would support charges of contacting or communicating with a minor with intent to commit a felony.

So one potential defense to Penal Code 288.4 charges is that your intent was only to engage in consensual sexual intercourse with the minor. This would mean that you are not guilty of that crime.²²

Penal Code 243.4 sexual battery

Penal Code 243.4 sexual battery is touching another person’s intimate parts without consent, for the purpose of sexual gratification, arousal, or abuse.

Sexual battery is typically a misdemeanor but can be prosecuted as a felony in aggravated circumstances.

Common defenses are that the victim consented or you were falsely accused.

Penal Code 314 indecent exposure

Penal Code 314 indecent exposure is willfully exposing your naked body or genitals in public so as to annoy or offend others. It is typically a misdemeanor but carries a sex offender registration requirement.

Penal Code 647a lewd conduct in public

Penal Code 647a lewd conduct in public is touching your own or another person’s genitals, buttocks, or female breast for sexual gratification, and you should know that other people present would be offended by it.

Lewd conduct in public is a misdemeanor and does not require sex offender registration.

Penal Code 311.1 distributing obscene matter showing sexual conduct by a minor

Penal Code 311.1 distributing obscene matter showing sexual conduct by a minor is sending or bringing obscene materials into California that you know shows a minor having sexual relations or simulating sex acts.

A wobbler, violating PC 311.1 can be a misdemeanor or felony depending on the case.

Additional resources

For more information, refer to the following:

• Teaching kids to be smart about strangers – Guide for parents by kidshealth.org.
• So, you need some help Tip Sheet – Tips for speaking to a trusted adult and how to gauge their response by missingkids.org.
• Talking about Stranger Safety – Guide by Scholastic for parents of children of different ages.
• Stranger Danger and Stranger Safety – Discussion by Johns Hopkins Medicine.
• National Child Abuse Defense & Resource Center (NCADRC) – Non-profit volunteer organization with the mission of using education to preserve the rights of people falsely accused of child abuse.

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