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

California Penal Code § 288 PC prohibits lewd and lascivious acts with a child. Commonly referred to as child molestation, this crime is broadly defined as any touching of a child under the age of 14 when done for sexual purposes.

Examples

• 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

Lewd and lascivious acts with a child is usually a felony. The sentence turns on the age of the child and other circumstances of the case:

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

• 1. Legal definition
• 2. Penal Code 288(b)(1) – lewd act accomplished by force or fear
• 3. How does the prosecutor prove sexual intent?
• 4. Penalties
• 5. Additional consequences
• 6. Will I have to register as a sex offender?
• 7. Defenses
• 8. Statute of limitations
• 9. Related offenses
• 10. Civil lawsuits
• Additional resources

Accidentally touching a child’s groin area is not a “lewd act” under CA Penal Code 288

1. Legal definition

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 they either:

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

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

The legal meaning of “willfully”

Someone commits an act willfully if they do 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.

The legal meaning of “touching”

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.

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.¹

Example: Richard is attracted to his six-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. Though 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.

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

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.

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

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.

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 they would not otherwise do or submit to.”

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.

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.

The legal meaning of “menace”

California law defines “menace” as a

• threat,
• statement, or
• act showing an intent to injure someone.²

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.

The use of force or violence can make the charge even more serious.

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.

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.

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.
• An armed stranger pushed the victim into a more isolated spot and made her lower her pants.
• A stranger put his hand inside the victim’s pants and rubbed her stomach and crotch.³

4. Penalties

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.

Child under 14 – no force or threat used

When no force is used, lewd acts on a minor under 14 is charged as a felony under Penal Code 288(a). The punishment can include:

• 3, 6 or 8 years in California state prison (or probation), and
• A fine of up to $10,000.⁴

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.

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

• 5, 8 or 10 years in state prison (with no possibility of probation), and
• A fine of up to $10,000.⁵

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) (California’s “One Strike” law) — 25 years to life for personally inflicting bodily harm on a victim under 14,
• Penal Code 288(i) – life sentence for personally inflicting bodily harm on a victim under 14, and
• Penal Code 12022.8 – 5-year sentencing enhancement for infliction of great bodily 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.

If the child was 14 or 15

Committing a lewd act against a 14 or 15-year-old child if the defendant was at least 10 years older at the time is a “wobbler” offense under PC 288(c)(1). This means prosecutors can charge it as either a misdemeanor or a felony.

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

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 1 year in county jail.⁶

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).

Second or subsequent Penal Code 288 conviction

A defendant facing PC 288 charges who has a prior sex crime conviction could also be prosecuted under Penal Code 667.71(b), California’s habitual sexual offender law.

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

PC 288 as a “strike” offense

A conviction of a lewd act against a minor under 14 is a “strike” and a serious felony under Penal Code 667, California’s “Three Strikes” Law. Defendants face double penalties if they get convicted of a second strike offense. Meanwhile, a third strike offense carries 25 years to life.⁷

5. Additional consequences

Defendants convicted of a lewd act with a minor face additional consequences besides incarceration and a fine:

• Mandatory registration as a California sex offender (discussed below),
• Loss of the right to own a firearm,
• Immigration consequences, including possible removal (deportation) from, or denial of entry (inadmissibility) into, the United States,
• Potential victim restitution in the form of payment for the victim’s medical or psychological treatment, and
• The potential loss of a professional license (such as a license to practice law or medicine).⁸

A conviction for a lewd act with a minor of any age requires registration as a California sex offender

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

Defendants must register for life as Tier 3 sex offenders for:

• A second or subsequent conviction under PC 288(a) – lewd acts on a child without force or fear, or
• Any conviction under PC 288(b)(1) – lewd acts on a child accomplished by force of fear.

Meanwhile, defendants must register for 20 years as Tier 2 offenders for a first-time conviction under Penal Code 288(a) – lewd acts on a child without force or fear.⁹

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 plea bargain to a lesser offense that does not require registration as a sex offender — for instance, Penal Code 242 PC, simple battery.

7. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with lewd and lascivious acts against a child. In our experience, the following defenses have proven very effective with prosecutors, judges, and juries.

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. Under California law, a minor cannot consent to an unlawful sexual act.

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 as well as emails and social networking accounts,
• Interview the child’s family, friends, schoolmates, and online contacts, and
• Conduct a thorough background check of the accuser and any alleged witnesses.

Example: Larry gets charged with Penal Code 288 after his 12-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 on the basis of false allegations.

Mistaken identification is a common defense to Penal Code 288

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 a dark or unfamiliar place,
• The perpetrator was a different race than the defendant, or
• The child was very young.

An experienced defense team will look for evidence that could undermine a child’s identification of the defendant as the perpetrator.

The touching was accidental

To violate Penal Code 288, a person must willfully touch a minor or cause the minor to touch themself, the person, or a third party. Accidents are not crimes.

Example: Scott tickles his nine-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, Scott is not guilty of lewd acts with a child.

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 themself or the minor, it is not child molestation.

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.

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 10 years younger than the defendant.

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

• The minor is 14 or 15 and less than 10 years younger than the defendant, or
• The minor is older than 15.

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

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

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

• An illegal search and seizure,
• A coerced confession,
• Entrapment, or
• Other police misconduct such as false testimony or planted evidence.

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.

The defendant was legally insane

Insanity is a defense to any criminal charge if the defendant can prove that they:

1. Did not understand the nature of their criminal act, or
2. Did not understand that what they were doing was morally wrong.¹⁰

However, this is a difficult argument to convince juries of in child sex cases. The defense attorneys would rely on expert witnesses to try to show that the defendant’s actions were beyond their control.

The defendant was intoxicated

Being drunk or high could be a defense to lewd acts charges if the defendant can prove their intoxication prevented them from having intent to gratify sexual desire. Though as with insanity, this is a difficult argument to get by juries in child sex cases.

Intoxication is always a more effective defense if we can show the defendant was drugged without their knowledge or against their will. Juries tend to be more forgiving of people who commit criminal acts while involuntarily intoxicated.¹¹

Private defense polygraph examinations

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

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.

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, our strategy is to 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.

If the report suggests the defendant is not a danger to other children and is unlikely to reoffend, we will use it to argue for probation instead of prison time.

8. Statute of limitations

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 committed on or after January 1, 2015.

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

California law permits prosecution for lewd acts against a child anytime before the victim’s 40th birthday

9. Related offenses

• Aggravated sexual assault of a child (PC 269)
• Annoying or molesting a child (PC 647)
• Arranging a meeting with a child for lewd purposes (PC 288.4)
• Child pornography (PC 311)
• Contacting a minor with intent to commit a sexual offense (PC 288.3)
• Continuous sexual abuse of a child (PC 288.5)
• Kidnapping (PC 207)
• Oral copulation with a minor (PC 287)
• Sending harmful matter to seduce a minor (PC 288.2)
• Sex with a child under 10 (PC 288.7)
• Sexual battery (PC 243.4)

Interrogation of the suspect is often the most critical piece of a Penal Code 288 investigation

10. Civil lawsuits

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

• 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.¹²

Plaintiffs can sue even if the defendant is never charged or convicted under Penal Code 288.

Moreover, the plaintiff does not need to prove the lewd act “beyond a reasonable doubt” to win a civil lawsuit. Instead, they must prove their claim by a preponderance of the evidence (that it is more likely than not) that the defendant is liable.¹³

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.

Also see our related article, How do police investigate lewd act allegations?

Legal references: