Penal Code § 288b1 PC – Lewd Act with a Minor Child by Force or Fear

California Penal Code § 288b1 PC defines the crime of committing a lewd act on a child under the age of 14, using force or fear of bodily injury.

Under Penal Code 288, a lewd act with a minor is either:

• touching a child for sexual purposes, or
• causing a child to touch him/herself or someone else for a sexual purpose.

Examples

• Ben, age 35, pushes Joseph, age 12, ties his hands behind his back, and Ben puts his hands down Joseph’s pants.
• Caleb, age 20, tell Brianna, age 11, that he will “punch her face in” if she doesn’t show him his breasts.
• Matias, age 31, begins to choke Isabella, age 8, as he starts to touch her genitals.

Defenses

There are several legal defenses that a person can raise if accused under this code section. These include showing that:

• The defendant did not use force or fear,
• the alleged victim was 14 years or older, and
• the defendant was stopped or arrested without probable cause.

Penalties

A lewd act with a minor child by force or fear is charged as a felony under California law (as opposed to a misdemeanor or an infraction).

The crime is punishable by imprisonment in the California state prison for:

• five years,
• eight years, or
• ten years.

In addition, a person guilty of this crime must register as a California sex offender for the rest of his life.

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

• 1. What is lewd acts with a minor child by force or fear?
• 2. Are there legal defenses?
  • 2.1. No force or fear
  • 2.2. Alleged victim 14 years old or older
  • 2.3. No probable cause
• 3. Penalties, punishment, and sentencing
• 4. Related laws
  • 4.1. Lewd acts on a minor child with no force – PC 288(a)
  • 4.2. Lewd act with force by caretaker of a dependent person – PC 288(b)(2)
  • 4.3. Lewd act with a minor child, bodily harm inflicted – PC 288(i)

1. What is lewd acts with a minor child by use of force or fear?

Penal Code 288b1 PC is the California statute that makes it a crime for a person to:

1. commit a lewd act on a minor child under 14 years of age, and
2. to do so by the use of force or fear of immediate bodily injury.¹

A “lewd act,” under California law, includes:

• the willful touching of a child for sexual purposes, or
• purposefully causing a child to touch him/herself or someone else for a sexual purpose.²

Please note that for these acts to quality as “lewd acts” they must be committed with the intent of arousing or gratifying the lust of either:

• the perpetrator,
• the child, and/or
• another person.³

The determination as to whether a defendant uses “fear of bodily injury” is based upon the facts of a given case.

2. Legal Defenses

A person can try to challenge a PC 288b1 accusation by raising a legal defense. A legal defense may work to reduce or even dismiss a charge.

Three common defenses include:

1. no force or fear,
2. the alleged victim is 14 years or older, and/or
3. no probable cause.

2.1. No force or fear

Please recall that a defendant can only be guilty under this statute if he commits a lewd act by using force or fear. Therefore, it is always a defense for the accused to show that his actions did not amount to force or fear.

2.2. The alleged victim was 14 years or older

Please also recall that an accused can only be guilty if he committed a lewd act on a minor under the age of 14 years. This means it is always a defense for the defendant to show that the alleged victim was 14 years or older. Note, however, that based on the accused’s acts, he could be found guilty of another crime.

2.3. No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime.

If a person was stopped or arrested and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the

• dismissal or
• reduction in charges.

“Probable cause” essentially means that there is a reasonable belief that someone committed a crime (based on all of the circumstances).

3. Penalties, punishment, and sentencing

A violation of Penal Code 288b1 is charged as a felony under California law.⁴ The crime is punishable by imprisonment in the California state prison for:

• five years,
• eight years, or
• 10 years.⁵

Note that in lieu of prison time, a judge may order a defendant to felony (or formal) probation.

Please also note that in addition to prison time, a person convicted will also have to register as a sex offender for the rest of his life.⁶

4. Related offenses

There are three laws related to lewd acts with a minor child by use of force or fear. These are:

1. lewd acts on a minor child with no force – PC 288;
2. lewd act with force by caretaker of a dependent person – PC 288b2, and
3. lewd act with a minor child, bodily harm inflicted – PC 288i.

4.1. Lewd acts on a minor child with no force – PC 288

Penal Code 288 PC is the California statute that defines the crime of “lewd acts with a minor child.”

In order to prove that an accused is guilty under Penal Code 288, a prosecutor must show that:

1. the defendant willfully committed a lewd or lascivious act,
2. he committed the act on a child under the age of 14, and
3. he did so with the intent of arousing the sexual desires of himself or the child.⁷

A defendant will be charged under PC 288 when he did not use any force when committing the lewd act. If force was used, then he would be charged under PC 288b1.

A violation of PC 288 is charged as a felony. The crime is punishable by imprisonment in the state prison for:

1. three years,
2. six years, or
3. eight years.⁸

A person guilty under this code section must also register as a sex offender for 20 years.

4.2. Lewd act with force by caretaker of a dependent person – PC 288b2

A party is guilty under California Penal Code 288b2 when:

• he is the caretaker of a dependent person (e.g., a physically impaired person aged 65 or older), and
• he commits a lewd act on that person.⁹

A violation of PC 288b2 is charged as a felony. The crime is punishable by imprisonment in the state prison for:

1. five years,
2. eight years, or
3. 10 years.¹⁰

A person guilty under this code section must also register as a sex offender for the rest of his life.

4.3. Lewd act with a minor child, bodily harm inflicted – PC 288i

Penal Code 288i is the California statute that governs when an accused commits a lewd act with a minor and bodily harm was inflicted.

PC 288i makes it a crime for a person to:

1. commit a lewd act on a minor child under the age of 14, and
2. inflict bodily harm on the victim in doing so.¹¹

Lewd acts with a minor child, with bodily harm inflicted, are charged as a felony under California law.

The crime is punishable by imprisonment in the California state prison for life with the possibility of parole.

In addition, a person guilty of this crime must register as a California sex offender for the rest of his life.

---

Legal References: