Penal Code § 288 PC – Lewd Acts With a Minor Child

California Penal Code § 288 PC sets forth the crime of lewd and lascivious acts with a child. Commonly referred to as child molestation, this is broadly defined as any touching of a child under the age of 14 when done for sexual purposes. A conviction is a felony punishable by 3, 6 or 8 years in state prison.

The language of the statute reads that:

288. (a) Except as provided in subdivision (i), a 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 and shall be punished by imprisonment in the state prison for three, six, or eight years.

(b) (1) A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(c) (1) A person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.

(2) A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.

A lewd act is defined as either:

• Touching a child for sexual purposes, or
• Causing a child to touch him/herself or someone else for a sexual purpose.¹

Technically, this section applies when the victim is anyone under age 16.² But because most prosecutions under this section involve children under 14, this crime is often referred to as:

• Lewd acts with a child under 14,
• Lewd acts on a minor under 14, or
• Acts of lewd and lascivious conduct.

(This section also makes it a crime for a caretaker to commit a lewd act by using force or threat against a dependent person.³ This includes dependent elders and people with disabilities.)

What constitutes a lewd act with a minor?

Criminal prosecutions for lewd acts with a minor typically involve accusations that

1. the child was touched or fondled on a sexual organ, or
2. an overt act of child molestation took place.

But a defendant can be charged with lewd acts even if:

• The touching was not on a sexual organ,
• The touching was done over the child’s clothes (rather than on the bare skin), or
• The child was the one doing the touching (if at the defendant’s urging).⁴

Note that it is the defendant’s intent to arouse him- or herself, the child or another person that makes the touching a crime. Actual arousal is not required.

Examples of lewd acts on a child

• Dennis places the hand of his 8-year-old stepdaughter on the crotch of his pants.
• Sam, a 9th-grade teacher, gropes a student’s breasts through her clothes,
• Ruby kisses the inner thighs of a child she is babysitting for the purpose of causing herself sexual arousal.

Penalties

Penalties for child molestation depend on a combination of factors, including:

• The age of the child,
• Whether the lewd act was accomplished by force, violence, duress, or threats,
• Whether there was a pattern of lewd acts, and
• If the child is 14 or 15, the age of the defendant.

The chart below shows the various penalties for lewd acts under this section. For purposes of the chart, the term “force” also includes duress and threats of harm or retaliation.

PC 288 VIOLATION	PC 288 PENALTY
Child under 14, no force used (Penal Code 288 (a))	3, 6 or 8 years in state prison, or Formal (felony) probation; and A fine of up to $10,000
Child under 14, force used (Penal Code 288 (b)(1))	5, 8 or 10 years in state prison, and A fine of up to $10,000
Child under 14, bodily harm inflicted (Penal Code 288(i) / PC 12022.8)	Up to life in prison
14 or 15-year-old child, and defendant 10 years or more older (Penal Code 288 288(c)(1))	1,2 or 3 years in state prison, and A fine of up to $10,000; or Up to 1 year in county jail, and A fine of up to $1,000
16 or 17-year-old child	Prosecuted as PC 261.5(a) statutory rape, or PC 243.4 sexual battery
Habitual sex offender (Penal Code 667.71(b))	25 years to life in prison
Lewd act with force by caretaker of dependent person (Penal Code 288(b)(2))	5, 8 or 10 years in state prison, and A fine of up to $10,000.

California sex offender registration

A conviction under Penal Code 288 PC requires the defendant to register as a California sex offender.⁵

Currently, any conviction under this section requires registration for life.⁶

Sex offenders are divided into three tiers, based on the severity of their offense as follows:

California Sex Offender Tier	Minimum Registration Period
Tier 1	10 years
Tier 2	20 years
Tier 3	Life

A first-time offender convicted under this section will be placed in Tier 2. Tier 2 sex offenders will be required to register as a sex offender for at least 20 years.⁷

However, lifetime registration (Tier 3) will still be required for:

• A second or subsequent conviction under PC 288(a),⁸ or
• Any conviction under PC 288(b)(i).⁹

A lewd act committed by force is a “strike offense”

Conviction of a lewd act by force or threat against a minor under 14 is a “strike” and a “serious felony” under both:

• Penal Code 667.61, California’s “One Strike Law,”¹⁰ and
• Penal Code 667, California’s “Three Strikes” Law.¹¹

Under California’s “One Strike” law, a defendant who personally inflicts bodily harm on a PC 288 victim must be sentenced to 25 years to life.¹²

And under California’s “Three Strikes” law, a defendant with a prior strike conviction will face an enhanced sentence for any Penal Code 288 conviction.¹³

Additional consequences of a “lewd acts” conviction

People convicted under this section face numerous collateral consequences. These can include:

• Loss of a professional license (such as a license to practice law or medicine),¹⁴
• Loss of the right to own a firearm, and/or
• Immigration consequences, including possible removal (deportation) from, or denial of entry (inadmissibility) into, the United States.¹⁵

For more information, please see our article on the Consequences of a Felony Conviction in California.

Statute of limitations for lewd acts on a child

Penal Code 801.1 allows prosecution for a felony violation of Penal Code 288 to be commenced at any time before the victim’s 40th birthday.¹⁶ This statute of limitations for a prosecution applies to lewd acts committed after January 1, 2015 (or acts for which the statute of limitations had not yet run as of that date).

Alleged violations that occurred earlier than 2015 are more complicated and should be discussed with an experienced California sex crimes attorney.

The important thing to remember, however, is that California sex crimes charges can be prosecuted many years after the alleged acts supposedly took place.

Legal defenses

There are many legal defenses to charges of lewd and lascivious acts against a child in California. Some of the most common include:

• To the extent there was contact, it was accidental,
• Contact occurred, but there was no intent to cause sexual arousal,
• The child is blaming the wrong person (“perpetrator substitution”), or
• The accuser is lying or mistaken.

We discuss these and other legal defenses in detail below. You may also wish to review our article on 17 Common Legal Defenses to California Crimes.

To help you better understand this complex and sensitive area of the law, our California criminal defense lawyers discuss, below:

• 1. What is the legal definition of lewd acts with a child?
  • 1.1. The legal meaning of “willfully”
  • 1.2. The legal meaning of “touching” under PC 288
• 2. Penal Code 288(b)(1) – lewd act accomplished by force or fear
  • 2.1. The legal definition of “force”
  • 2.2. The legal definition of “fear”
  • 2.3. The legal definition of “duress”
  • 2.4. The legal meaning of “menace”
• 3. How does the prosecutor prove sexual intent?
• 4. What is the punishment for a PC 288 conviction?
  • 4.1. Child under 14 – no force or threat used
  • 4.2. Lewd act involving force or threat against a child under 14
  • 4.3. Lewd act resulting in bodily harm to victim under 14
  • 4.4. If the child was 14 or 15
  • 4.5. If the minor was 16 or 17
  • 4.6. Second or subsequent Penal Code 288 conviction
• 5. Additional consequences of a Penal Code 288 conviction
• 6. Will I have to register as a sex offender?
• 7. What are the best defense strategies in a case like this?
  • 7.1. The child is lying
  • 7.2. The child is mistaken
  • 7.3. The touching was accidental
  • 7.4. There was no intent to arouse
  • 7.5.  The minor does not fit the age criteria for the crime
  • 7.6. The defendant was the victim of an illegal search or other police misconduct
  • 7.7. Private defense polygraph examinations
  • 7.8. Mitigation and probation (Penal Code 288.1 report)
• 8. What is the statute of limitations for a Penal Code 288 prosecution?
• 9. How do police investigate “lewd act” allegations?
  • 9.1. The police receive a report of an alleged incident
  • 9.2. The police interview the accuser
  • 9.3. Medical examination and forensic analysis
  • 9.4. The pretext call
  • 9.5 Search for other victims
  • 9.6 Interrogation of the suspect
  • 9.7 Police polygraph examination
• 10. Related offenses
  • 10.1 Penal Code 288.2 | Sending Harmful Matter to Seduce Minor
  • 10.2 Penal Code 288.3 | Contacting a Minor to Commit a Felony
  • 10.3 Penal Code 288.4 | Arranging a Meeting with a Child for Lewd Purposes
  • 10.4 Penal Code 288.5 PC | Continuous Sexual Abuse of a Child
  • 10.5 Penal Code 288.7 | Sex with a Child Under 10
  • 10.6 Penal Code 287 | Oral Copulation with a Minor
  • 10.7 Penal Code 311 | Child Pornography
  • 10.8 Penal Code 243.4 PC│Sexual battery
  • 10.9 Penal Code 207 PC│Kidnapping
  • 10.10 Penal Code 647.6 │ “Annoying” or “Molesting” a Child Under 18
  • 10.11 Penal Code 269 | Aggravated Sexual Assault of a Child
• 11. Civil lawsuits by victims of lewd acts
• Additional resources

1. What is the legal definition of lewd acts with a child?

California Penal Code 288(a) PC defines a “lewd act with a minor” as:

• Any lewd or lascivious act,
• Made upon the body of a child under 14,
• With the intent of arousing or gratifying the lust of either:
  • The perpetrator,
  • The child, and/or
  • Another person.

Someone commits a lewd or lascivious act when he or she either:

• Willfully touches any part of a child’s body, or
• Willfully causes a child to touch:
  • The child’s own body,
  • The defendant’s body, or
  • The body of another person. ¹⁷

Example: Janine is babysitting Alex, age 10, and his little sister, Brenda. She orders Alex to touch Brenda’s vagina.

Even though there was no contact between Janine and a child, Janine has committed a lewd and lascivious act.

Let’s take a closer look at some of these elements.

1.1. The legal meaning of “willfully”

Someone commits an act willfully if he or she does it on purpose. It is not necessary that the person intends to

• break a law,
• harm another person, or
• gain any advantage.

This means that any accidental contact with the child – even of a sexual organ — does not constitute a lewd act under Penal Code 288.¹⁸

Example: Albert is a 7th-grade wrestling coach. While showing Peter, who is 13, a hold, Albert accidentally touches Peter’s penis. Because the contact was accidental, Albert has not violated PC 288.

1.2. The legal meaning of “touching” under Penal Code 288 PC

To violate this section, the defendant must “touch” any part of a child’s body or cause the child to touch someone.

Under this section, “touch” has its everyday English meaning.

However, the touching does not need to be

• on the skin or
• on a sexual organ.

It can be on any body part and made either

• on the bare skin or
• through the clothing.¹⁹

Furthermore, actual arousal is not required. The key is whether the touching was on purpose and intended to cause arousal or to satisfy a sexual desire.²⁰

Example: Richard is attracted to his 6-year-old stepdaughter Vera. While they are watching TV, he massages her feet through her socks. Simply touching Vera’s feet is enough for Richard to get sexual gratification.

Richard has done nothing that is usually considered sexual or lewd in nature. But technically, because he has touched a child for the purpose of arousing himself, he engaged in a lewd act.

2. Penal Code 288(b)(1) – lewd act accomplished by force or fear

Using force or fear to commit a lewd act on a child subjects the defendant to greater penalties.

Specifically, under Penal Code 288(b)(1), the defendant faces greater penalties if the act is accomplished by:

• Force,
• Violence,
• Duress,
• Menace, or
• Threats that place the child in fear of immediate and unlawful bodily injury to the child or someone else.²¹

Let’s take a closer look some of these terms.

2.1. The legal definition of “force”

The force required for a Penal Code 288(b)(1) conviction must be substantially different from or greater than the wrongful touching itself.²²

Example: Victor grabs Lisa’s vagina. This is a violation of Penal Code 288(a) because the force is part of the act itself.

But if Victor slaps Lisa in order to make her take off her panties, he has used force that is not part of the act itself. This makes the lewd act one involving force and subjects Victor to increased penalties.

2.2. The legal definition of “fear”

A lewd act is accomplished by fear if:

• The child is actually and reasonably afraid, or
• The child is unreasonably afraid and the defendant knows and takes advantage of it.²³

2.3. The legal definition of “duress”

For purposes of California Penal Code 288(b)(1), “duress” is defined as:

“The use of a direct or implied threat of force, violence, danger, hardship, or retribution [payback or revenge] sufficient to cause a reasonable person to do, or submit to, something that he or she would not otherwise do or submit to.”²⁴

Duress is determined by the totality of the circumstances. Such circumstances can include (without limitation):

• Threats to harm the victim,
• Physically controlling the victim if the victim attempts to resist, and
• Warnings to the victim that revealing the molestation would jeopardize the family.²⁵

When deciding whether a lewd act was accomplished by duress, a jury may consider all the circumstances, including:

• The age of the child,
• The child’s relationship to the defendant,
• The difference in size between the victim and the defendant, and
• The location where the interaction took place. ²⁶

2.4. The legal meaning of “menace”

California law defines “menace” as a threat, statement, or act showing an intent to injure someone.²⁷

Example: 11-year old Callie’s stepfather tells Callie that if she does not touch his penis he will hurt her little brother. Even if it is an idle threat, he has still used menace to accomplish his sexual exploitation of her.

3. How does the prosecutor prove sexual intent?

Intent is one of the most difficult elements of a crime to prove. Ultimately, whether a defendant acted with the required intent is a question of fact for the jury to decide, taking into account all the circumstances.²⁸

Factors the jury can consider include:

• The context in which the touching occurred,
• Whether the defendant and the alleged victim know each other,
• The nature of the touching, and
• The absence of an innocent explanation.²⁹

Examples of situations in which California courts have upheld a PC 288 conviction have included:

• A babysitter rubbed the victim’s lower back, stomach, and thigh. Lewd intent was inferred from charges of sexual intercourse and genital contact involving other victims.³⁰
• An armed stranger pushed the victim into a more isolated spot and made her lower her pants.³¹
• A stranger put his hand inside the victim’s pants and rubbed her stomach and crotch.³²

4. What is the punishment for a PC 288 conviction?

Punishment under 288 PC varies considerably depending on:

• The age of the child,
• Whether force or threats were used, and
• The defendant’s criminal history.

Let’s take a closer look at each of the possible scenarios and the resulting PC 288 punishment.

4.1. Child under 14 – no force or threat used

If the child was less than 14 years old at the time of a lewd act, a violation of Penal Code 288 is always a felony. When no force is used, the violation charged is Penal Code 288(a).

Possible punishment for a lewd act under PC 288(a) can include:

• 3, 6 or 8 years in California state prison,³³ and
• A fine of up to $10,000.

For information on how the number of years of prison is determined, please see our article on Felony Sentencing in California.

Alternatively, the judge can grant probation and up to one year in county jail.³⁴ But even if no prison time is served, PC 288 still counts as a felony sex offense.

Who is eligible for probation for a violation of PC 288(a)?

Some PC 288(a) offenders may be eligible for California formal (felony) probation instead of prison time. The court will consider various factors related to both the circumstances of the crime and the defendant’s criminal history (if any).³⁵

Felony probation involves various conditions, which may include serving up to a year in county jail.

We discuss the process for obtaining probation further in Section 7.8, below

4.2. Lewd act involving force or threat against a child under 14

A lewd act against a child under 14 is a violation of Penal Code 288(b)(1) if it is accomplished by:

• Force,
• Violence,
• Duress, or
• Threats.³⁶

Possible penalties under Penal Code 288(b)(1) can include:

• 5, 8 or 10 years in state prison, and
• A fine of up to $10,000.

Importantly, defendants convicted under PC 288(b)(1) are not eligible for probation. The court must sentence the defendant to prison.

4.3. Lewd act resulting in bodily harm to victim under 14

California has several statutes under which punishment for a lewd and lascivious act can increase dramatically if the child is harmed. These include:

• Penal Code 667. 61(d)(7) — 25 years to life for personally inflicting bodily harm on a victim under 14,³⁷
• Penal Code 288(i) – life sentence for personally inflicting bodily harm on a victim under 14,³⁸ and
• Penal Code 12022.8 – 5-year sentencing enhancement for infliction of great bodily injury.³⁹

Under these sections, “bodily harm” and “great bodily injury” are defined as any substantial physical injury.⁴⁰ As used in this section, “great bodily injury” means a significant or substantial physical injury.”

The prosecutor can charge any or all of these. As a result, a defendant who inflicts physical injury on a child under 14 during a lewd act faces a sentencing increase of anywhere from an additional five years to life in prison.

Example: Ben is a 6-year-old child. Joseph is his 20-year-old neighbor. Joseph has no criminal history.

During a neighborhood barbeque, Joseph slides his hand into Ben’s pants to touch his penis. Ordinarily, Joseph would face a possible conviction under Penal Code 288(a), for which he might be sentenced to probation.

But during the act, Ben begins to struggle. Joseph panics and hits Ben in the face. Even though Joseph does not mean to hurt Ben, he breaks Ben’s jaw. As a result, Joseph could potentially face life in prison.

4.4. If the child was 14 or 15

It is a crime under California Penal Code 288(c)(1) to commit a lewd act against a 14 or 15-year-old child if the defendant was at least 10 years older at the time.⁴¹

Penal Code 288(c)(1) is what’s known as a “wobbler” offense in California.

A wobbler is an offense that prosecutors can charge as either a misdemeanor or a felony. Prosecutors normally decide which to charge based on:

• The facts of the case, and
• The defendant’s prior criminal history (if any).

Punishment of PC 288(c)(1) as a misdemeanor

As a misdemeanor, a lewd act against a 14 or 15-year-old can be punished by up to one (1) year in county jail.⁴²

And even as a misdemeanor, a violation of Penal Code 288 requires the defendant to register as a California sex offender.⁴³

Consequences of PC 288(c)(1) as a felony

As a felony, the penalty under PC 288(c)(1) is:

• 16 months, 2 years or 3 years in state prison, or
• Felony probation, which can include up to one year in county jail.⁴⁴

4.5. If the minor was 16 or 17

If the minor was 16 or 17 years old at the time of a lewd act, it will not be prosecuted under Penal Code 288. Rather it will usually be prosecuted under either:

• California’s statutory rape law, Penal Code 261.5, or
• California’s sexual battery law, Penal Code 243.4(a).

4.6. Second or subsequent Penal Code 288 conviction

In addition to being prosecuted under PC 288, a defendant with a prior sex crime conviction could be prosecuted under Penal Code 667.71(b), California’s habitual sexual offender law.⁴⁵

As a habitual sex offender, a defendant faces a sentence of 25 years to life in state prison.⁴⁶

5. Additional consequences of a Penal Code 288 conviction

Defendants convicted of a lewd act with a minor face additional consequences besides incarceration and a fine. Collateral consequences of a conviction for a lewd act with a child include:

• Mandatory registration as a California sex offender (discussed below),
• Potential victim restitution in the form of payment for the victim’s medical or psychological treatment,⁴⁷ and
• The potential loss of a professional license (such as a license to practice law or medicine).⁴⁸

6. Will I have to register as a sex offender?

People convicted of lewd acts under Penal Code 288 must register on the “Megan’s Law” California sex offender registry.⁴⁹

A judge has no discretion to alleviate the defendant’s duty to register as a sex offender.

However, a skilled California sex crimes defense attorney may be able to get a defendant a plea bargain to an offense that does not require registration as a sex offender — for instance, Penal Code 242 PC, simple battery.

How long will I have to be on the sex offender registry?

Current law provides that all persons convicted of lewd acts on a minor must register as a sex offender for life.

Beginning on January 1, 2021, however, sex offenders will be divided into three “tiers.” The tiers will be based on the severity of the offense.

Tier 3 – lifetime registration

The most serious California sex offenders will be placed in Tier 3 and require lifetime registration. Tier 3 includes:

• A second or subsequent conviction under PC 288(a), or
• Any conviction under PC 288(b)(i).⁵⁰

Tier 2 – registration for 20 years or more

A first-time offender convicted under Penal Code 288(a) will be placed in Tier 2.

Tier 2 sex offenders will be required to register as a sex offender for 20 years.⁵¹

7. What are the best defense strategies in a case like this?

Fortunately, there are many ways to defend against Penal Code 288 charges.

Before we discuss them, it is important to note that the child’s consent is NOT a defense to charges of lewd acts with a minor.⁵² Under California law, a minor cannot consent to an unlawful sexual act.

It is also important to note that every case, accuser, suspect and scenario is different.

An experienced California criminal defense lawyer will want to evaluate all the circumstances before embarking on a defense strategy.

However, typical lines of defense often include one or more of the following:

7.1. The child is lying

Often the prosecution’s case hinges on the child’s credibility. This is especially true where there is no confession or physical corroboration.

In order to determine whether the child is being truthful, an experienced California sex crimes defense attorney will usually:

• Subpoena the accuser’s school, counseling, and medical records, emails, and social networking accounts,
• Interview the child’s family, friends, schoolmates, and online contacts, and
• Conduct a thorough background check on the accuser and any alleged witnesses.

As San Bernardino sex crimes defense attorney Michael Scaffidi⁵³ explains:

“Quite often, investigations reveal that the accuser has a bias and or has been coached to falsely accuse the defendant. Or we will discover that the accuser has a history of telling lies about other people. When we can demonstrate this in court, it goes a long way towards undermining the accuser’s credibility and with it the prosecutor’s entire case.”

Example: Larry gets charged with Penal Code 288 after his twelve-year-old stepdaughter, Tina, reports that he fondled her breasts. An investigation reveals that prior to the alleged incident, Tina texted her friends that she hates Larry and has a “plan to get him out of the house for good.” When this evidence is taken to the prosecutor, the case gets dismissed.

Example: Ten-year-old Carlos accuses his uncle Martin of putting his mouth on his penis. Carlos’s school record shows that the prior semester Carlos had falsely accused a boy at school of punching him. This incident is presented to the jury at trial. Given the boy’s history of making false accusations, the jury finds Martin “not guilty.”

7.2. The accuser is mistaken

Sometimes a child was 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.

An experienced defense team will thoroughly investigate the circumstances of the alleged offense to look for facts that could undermine a child’s identification of the defendant as the perpetrator.

For more information on how victims can identify the wrong person, please see our article on Mistaken Identification as a California Criminal Defense.

7.3. The touching was accidental

In order for prosecutors to convict a defendant under Penal Code 288, the defendant must willfully touch a minor. Or the defendant must willfully cause the minor to touch him/herself, the defendant or another person.

If the contact was accidental, the defendant is not guilty.⁵⁴

Example: Scott tickles his 9-year-old niece Sarah in a playful, non-sexual way. As he tickles her, he accidentally touches her vaginal area through her clothes.

Because the contact is accidental (as well as because it is not intended to sexually arouse either party) Scott is not guilty of lewd acts with a child.

7.4. There was no intent to arouse

Penal Code 288 only prohibits contact made for the purpose of sexually arousing the perpetrator or the child. If the defendant did not intend to sexually arouse or gratify him or herself of the minor it is not child molestation.⁵⁵

Example: Sally’s 12-year-old nephew Nathan finishes swimming and takes his trunks off to change. Sally sees what appears to be a rash on his penis. She holds his penis with her fingers to examine the skin.

Sally is not doing this to arouse either herself or Nathan sexually. Even though she touches his sexual organ, she has not committed a crime.

7.5.  The minor does not fit the age criteria for the crime

There are two types of child molestation prohibited by California Penal Code 288 PC:

• Engaging in a lewd act with a child under 14, and
• Engaging in a lewd act with a minor who is 14 or 15 and who is at least ten years younger than the defendant.⁵⁶

This means that a defendant is not guilty under PC 288 if:

• The minor is 14 or 15 and less than ten years younger than the defendant, or
• The minor is older than 15.

Note, however, that the defendant may still be charged another California Penal Code Section, such as

• Penal Code 261, “statutory rape,” or
• Penal Code 243.4, “sexual battery.”

7.6. The defendant was the victim of an illegal search or other police misconduct

Sexual offenses against children are prosecuted vigorously in California — sometimes over-vigorously. When evidence in a PC 288 prosecution is obtained in violation of California law or a defendant’s constitutional rights, a skilled California sex crimes lawyer will often be able to get it excluded.

Ways the police or prosecutor can violate a PC 288 defendant’s rights include:

• An illegal search and seizure,
• Police misconduct such as false testimony or planted evidence,
• Coerced confession, or
• Entrapment.

7.7. Private defense polygraph examinations

One way to defend charges under Penal Code 288 is with a private defense polygraph examination.

Most people associate “lie detector tests” with the police. But private persons can also arrange for polygraph examinations.

Even though private polygraph results are not admissible in court, they can be advantageous to the accused. This is because the results can be kept confidential unless the person “passes.”

How does a private polygraph examination work?

Sometimes a defendant accused of violating Penal Code 288 insists that the allegations are false and nothing ever happened. In such a case we may have him sit for a private lie detector test with one of our examiners. We work with a variety of examiners who are former police or FBI polygraphers and whose work has great credibility with the district attorney.

If the exam shows the client is being deceptive, we simply shred the results and never tell anyone the polygraph took place.

If, on the other hand, the exam shows the client is being truthful, we can take the results to the prosecutor. Even though the results are not admissible in court, they are often enough to convince the district attorney, who does not want to prosecute a factually innocent person.

(Note that in some cases the prosecutor will want the suspect to take a second, follow-up polygraph with a police polygrapher, and to pass that test as well, before dismissing the case.).

7.8. Mitigation and probation (Penal Code 288.1 report)

Sometimes we get a case where the client confessed to the police and/or the evidence clearly supports the charges.

In these cases, barring a legal technicality, our strategy is usually not to argue that the lewd acts never happened. Rather, we try to show that the charges arose from an isolated incident and that this sort of conduct is unlikely ever to recur.

To do this we focus on our client’s good character and other felony sentencing “mitigation” factors.

When we are successful, our client receives probation instead of being sentenced to many years in California state prison. Probation involves at most one year in county jail and sometimes no jail time at all.

How does PC 288.1 mitigation work?

Before a judge may grant probation, the court must obtain a “Penal Code 288.1 report” (mental evaluation) by a trained psychologist or psychiatrist. The evaluator will interview the defendant and look at:

1. The circumstances of the offense, and
2. The defendant’s history.

The focus will be on whether the defendant is a danger to other children and whether the conduct is likely to happen again.

The court is not required to request a PC 288.1 report but may do so in its discretion.

If the report is favorable, we will use it to argue for probation instead of prison time.

8. What is the statute of limitations for a Penal Code 288 prosecution?

California recently enacted a number of laws that dramatically increase the time frame during which sex crimes against minors can be prosecuted.

Under California Penal Code 801.1, felony prosecution for a lewd act against a minor can be commenced at any time before the victim turns 40. This statute of limitations applies to any crimes either:

• California Penal Code 801.1Committed on or after January 1, 2015, or
• For which the statute of limitations that was in effect prior to January 1, 2015, has not run as of January 1, 2015.⁵⁷

Since most violations of PC 288 are felonies, this means that a prosecution for lewd acts against a minor can be brought a quarter century or more after the alleged acts.⁵⁸

As a practical matter, the longer the alleged victim waits to report a sex crime the more difficult it is to prosecute.

9. How do police investigate “lewd act” allegations?

Law enforcement agencies devote considerable resources to investigating sex crimes against children. This includes allegations of lewd acts with a minor child.

Many police agencies in California have special departments or units that focus on the alleged sexual abuse of children. The cases often go to detectives with specialized training in dealing with child victims and forensic science.

This is how a case involving an alleged sex offense against a child generally unfolds:

9.1. The police receive a report of an alleged incident

Almost all Penal Code 288 cases begin with the accuser reporting the alleged sexual abuse. Sometimes the child will contact the police directly.

More often, the child will go to an authoritative adult figure such as

• a parent,
• another relative,
• a teacher or
• a school counselor.

That adult will then contact the police.

Sometimes, the accuser will make a report of lewd acts long after they allegedly occurred. An adult, for example, may report abuse from many years earlier, when he or she was a child.

The accuser may say

• that she was too afraid or confused to come forward earlier, or
• that she did not want to get the accused in trouble, or
• that she did not understand the nature of the abuse at the time.

9.2. The police interview the accuser

Next, the police will want to interview the accuser for details of the alleged lewd acts. Often these interviews are conducted by child psychologists or detectives with special training and experience in dealing with child victims.

Typically, the interview is audio- and/or videotaped. The child’s parent(s) may or may not be present.

A good interviewer will be careful to coax the child to speak candidly, but without

• being too suggestive or
• putting words in the child’s mouth.

That said, it’s not uncommon for a bad interviewer to use leading questions to guide the child into a certain story. For instance, a bad interviewer might ask:

“Tommy, did your uncle pull your pants down?

Did he start touching your pee-pee?

Did he put his mouth on your pee-pee?

Did he tell you to keep this a secret and not tell anybody else?”

As you can see, an interviewer who is predisposed to believe that sexual abuse occurred can intentionally or inadvertently prod the child to agree along the way.⁵⁹

9.3 Medical examination and forensic analysis

The police may want to order a medical examination of the child and forensic analysis. This is particularly true if the allegation is of very recent lewd and lascivious acts or anal or vaginal penetration.

• The exam may include swabs and analysis of:
• The child’s body,
• The child’s clothes, and
• The location of the alleged incident.

The police will be looking for DNA — in particular, the suspect’s

• saliva,
• hair,
• skin, or
• semen.

Anal or vaginal penetration, even slight and perpetrated with a finger, will usually cause some injury to these areas of the child’s body. This can include

• microscopic tears and
• lesions.

A trained medical examiner can identify and document these injuries, and ultimately explain to a jury how they are likely to have occurred.

Conversely, the absence of injuries or DNA can sometimes serve as evidence that any alleged penetration or sexual acts did not occur.

9.4 The pretext call

Frequently in Penal Code 288 cases, the police will have the accuser make a staged phone call to the suspect.

Unbeknownst to the suspect, the police are on the line with the accuser. They are recording the conversation and guiding the accuser as to what to say. This is known as a “pretext call.”

The point of the pretext call is to try to get the suspect to confess. Sometimes the accuser may confront the suspect directly:

“Why did you rub me on my tush the other night? I’m thinking about telling my parents.”

Or the accuser may approach it more subtly:

“I miss you Uncle Frank. I miss lying in bed with you. I miss you kissing me down there.”

The point is to lure the suspect to respond in a way that would amount to at least a tacit admission of the wrongdoing.

9.5 Search for other victims

If the lewd acts with a child really did occur, and the suspect is a true pedophile, then chances are there are other victims out there.

The police may search out and try to identify all the children who may have been exposed to a suspect’s misconduct.

If other children claim that the same sort of acts occurred, this evidence can greatly enhance the prosecution’s case. It may also lead to additional counts of Penal Code 288.

9.6 Interrogation of the suspect

Interrogation of the suspect is often the most critical piece of a Penal Code 288 investigation. If the cops can get a confession it will usually seal their case.

Cops choose between two interrogation strategies:

1. Interviewing the suspect out of custody, or
2. Arresting the suspect and interviewing him/her at the station or jail.

An advantage to interviewing the suspect out of custody is that the cops do not necessarily need to read the suspect the suspect’s Miranda rights. They may show up at the suspect’s home and initially pretend to be on his side:

“Mr. Smith, can we speak with you briefly. There have been certain allegations of lewd acts with a minor. We do not know if they are true. We just want to get your side of the story.”

This friendly, “good cop” approach is almost always a guise to put a suspect at ease and conceal the true agenda. In reality, the officers plan to interrogate the suspect and pressure him/her into a confession.

When do the cops need to advise a suspect of his/her Miranda rights?

If the police arrest the suspect and interview him in custody, they must first advise him of his Miranda rights. And, of course, he must waive those rights and agree to speak to them about the allegations.

Regardless of the setting, we advise suspects never to agree to a police interview without their attorney present.

Even when someone is factually innocent and has nothing to hide, it’s almost always a bad idea to talk to the cops.

The police will try to trip the suspect up and find subtle inconsistencies in his story. The prosecutor can then introduce these at trial to argue that the defendant is being untruthful.

9.7 Police polygraph examination

If the suspect denies the alleged sexual contact, the police will often ask him to submit to a polygraph examination. These are conducted by a police polygrapher, usually at the station or at the jail. They are always voluntary; the police can’t force the suspect to take the test.

The evidence relating to polygraphs is inadmissible in court. However, if the suspect takes the test and “passes,” this may convince the authorities he is factually innocent and thus charges may not get filed.

If he fails the test, that will further convince the police and prosecutors that the allegations are true. They will be even more determined to

• build a case and
• win a conviction.

10. Related offenses

A variety of California sex offenses are frequently charged along with Penal Code 288 or are lesser included offenses. Some of the crimes most commonly charged with PC 288 include:

10.1. Penal Code 288.2 | Sending Harmful Matter to Seduce a Minor

If you knowingly send or email erotic material to a minor with the intent of arousing yourself or the minor, you may be charged with Penal Code 288.2 PC (harmful matter sent with intent to seduce a minor).

An example of sending harmful matter with intent to seduce a minor would include chatting online with a child you believe to be 12 years old, and then emailing him/her a nude photo.

Penal Code 288.2 can be punished as a misdemeanor or felony, subjecting you to a county jail or state prison sentence. The law excludes parents or others who act for legitimate scientific or sex education purposes.

10.2. Penal Code 288.3 | Contacting a Minor to Commit a Felony

If you contact a minor (such as by phone, email, text or chat) with the intent to commit a felony such as kidnapping, rape, sodomy, lewd acts or making child pornography, you could be charged with Penal Code 288.3 (contacting a minor with intent to commit a sexual offense).

An example of contacting a minor with intent to commit a sexual offense would be messaging a child because you’d like to arrange a sexual get-together.

Penal Code 288.3 is a felony and punishment is up to 3 years of California state prison. A conviction usually triggers lifetime registration as a sex offender.

10.3. Penal Code 288.4 | Arranging a Meeting with a Child for Lewd Purposes

If you arrange a meeting with a minor, or someone you believe to be a minor, in order to engage in lewd behavior, you could be charged with Penal Code 288.4 PC (arranging a meeting with a minor to commit a sexual offense).

Penal Code 288.4 is exemplified by the show “To Catch a Predator” on Dateline NBC. A suspect would communicate online with a person he believed to be a minor, and make arrangements to meet the child at a location for a sexual encounter. Really, the person on the other end is a police decoy. When the suspect shows up at the location, he gets arrested and put on television.

Merely arranging a Penal Code 288.4 meeting is a wobbler, meaning it can be a misdemeanor or a felony punishable by up to 3 years in California state prison. If the suspect actually goes to the arranged meeting place, the offense becomes a straight felony and the penalty is up to 4 years state prison.

10.4. Penal Code 288.5 PC | Continuous Sexual Abuse of a Child

Penal Code 288.5 PC is California’s law on “continuous sexual abuse of a child.” This crime involves engaging in three or more sex acts of lewd or lascivious conduct over a period of three months or longer, with a child under 14 years of age.

A person convicted of Penal Code 288.5 PC (continuous sexual abuse of a child) faces between 6 and 16 years of state prison.

10.5. Penal Code 288.7 | Sex with a Child Under 10

An adult who engages in a sexual act with a child under 10 years of age violates California’s law against sex with a child under 10, Penal Code 288.7 PC.

Violation of PC 288.7 is a felony, punishable as follows:

• For sexual intercourse or sodomy, 25 years to life in the state prison (Penal Code 288.7(a)).
• For oral copulation, 15 years to life in state prison (Penal Code 288.7(b).

10.6. Penal Code 287 | Oral Copulation with a Minor

Penal Code 287 PC is California’s law against oral copulation of a minor child. PC 287 makes it a crime for adults to participate in an act of oral sex with someone under 18.

Punishment under PC 287 depends on:

• The age of the child,
• The difference between the ages of the defendant and the child, and
• Whether the act is accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.

If the victim is under 14, PC 287(c)(1) is always a felony. Punishment for a felony violation of PC287 ranges from three years to twelve years in prison.

10.7. Penal Code 311 | Child Pornography

Penal Code 311 PC – California’s child pornography law, prohibits possessing or distributing materials that:

• Depict minors engaging in sexual activity, or
• Display a minor’s genitals.

If you show a minor these types of materials while engaging in a “lewd act” with that minor, prosecutors could charge you with possessing child pornography and child molestation.

If convicted of a Penal Code 311 child pornography offense under these circumstances, you may be sentenced to incarceration and substantial fines.

10.8. Penal Code 243.4 PC│Sexual Battery

Penal Code 243.4, California’s law on “sexual battery,” prohibits touching the intimate part of another for sexual arousal, gratification, or abuse.

The difference between this law and Penal Code 288 “lewd acts with a minor” is that “sexual battery” makes no mention of the victim’s age. Hence it is often the charge that is filed when:

• The minor is 16 or 17, or
• The minor is 14 or 15 but less than ten years younger than the defendant.

A “sexual battery” charge under Penal Code 243.4 may be filed as either a misdemeanor or as a felony.

A misdemeanor conviction triggers a duty to register as a sex offender for at least 10 years. Otherwise, felony sexual battery usually carries a duty to register as a sex offender for life in California.

10.9. Penal Code 207 PC │ Kidnapping

You violate Penal Code 207 PC – California’s “kidnapping” law, if you

• persuade,
• entice, or
• lure

a minor to accompany you to a location so that you can engage in a “lewd act” with him or her.

Under these circumstances, kidnapping subjects you to a five, eight, or eleven-year state prison sentence.

10.10. Penal Code 647.6 PC│Annoying or Molesting a Child Under 18

You “annoy” or “molest” a child, Penal Code 647 PC, when:

• You engage in conduct likely to disturb or irritate a child under 18 years of age, and
• Your conduct is motivated by a sexual interest in a specific child or in children generally.

Under Penal Code 647.6, you do not need to touch any part of a child’s body. You may violate this section by:

• Using inappropriate language, or
• Engaging in otherwise innocent conduct — such as masturbating — if your intent is that your actions be observed by a child or children.

A first offense of Penal Code 647.6 PC (annoying or molesting a child) is generally a misdemeanor. Repeat offenses, and offenses committed by those with prior felony convictions for sex crimes involving children, are felonies.

10.11. Penal Code 269 | Aggravated Sexual Assault of a Child

One commits Aggravated Sexual Assault of a child (as per Penal Code 269 PC) when:

1. one commits a “certain crime” with a child (as listed in the section below),
2. the child is under the age of 14, and
3. the child is 7 or more years younger than the defendant.

The “certain crimes” listed within Penal Code 269 include:

1. Rape.
2. Rape or sexual penetration, in concert.
3. Sodomy.
4. Oral copulation.
5. Sexual penetration.

Aggravated sexual assault of a child is charged as a felony under California law and is punishable by imprisonment in a California state prison for a term of 15 years to life. If related offenses are found, consecutive sentences will be added onto the original sentence. Also, a person found guilty of this crime must register as a California sex offender for the rest of his or her life.

11. Civil lawsuits by victims of lewd acts

In addition to filing criminal charges, victims of lewd acts may bring a civil sex abuse lawsuit. Lawsuits for sexual abuse must be commenced:

• Within eight years of the plaintiff turning 18, or
• Within three years of the date on which the plaintiff discovers — or reasonably should have discovered — that psychological injury or illness occurring after the age of majority was caused by the sexual abuse.⁶⁰

The plaintiff has until the later of these two periods in which to file suit.

A conviction under Penal Code 288 is not necessary for a victim of a lewd act to file a civil lawsuit for damages. An alleged victim can sue even if:

• The defendant was found “not guilty” of lewd act in a jury trial, or
• No Penal Code 288 charges were ever filed.

Moreover, the victim does not need to prove the lewd act “beyond a reasonable doubt.” In a civil lawsuit, the victim must prove his or her claim by a “preponderance of the evidence.”  This is a standard that simply means it is more likely than not (51% or more likely) that the defendant did what the plaintiff alleges.⁶¹

For more information on lawsuits by childhood sexual abuse victims, we invite you to contact our California personal injury lawyers.

Additional resources

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

• Lewd or Lascivious Acts with a Child under Fourteen: California’s Extension of Force under Penal Code Section 288 – Criminal Justice Journal.
• Sex offender residence restrictions and sex crimes against children: A comprehensive review – Aggression and Violent Behavior.
  
• Designing a Penal Code 288 Rehabilitation Curriculum – California State University, Stanislaus.
• Criminal consequences of childhood sexual victimization – Child Abuse & Neglect.
• Are Sex Offenders Moving into Social Disorganization? Analyzing the Residential Mobility of California Parolees – Journal of Research in Crime and Delinquency.

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