Penal Code § 288b2 – Lewd Act by a Caretaker of a Dependent Person

California Penal Code § 288b2 PC makes it a crime for a caretaker to commit a lewd act on a dependent person (or a physically impaired person aged 65 or older) by means of force or fear.

The language of the statute reads as follows:

“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.”

Under Penal Code 287, a lewd act is either:

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

Examples

• John is an employee at a nursing home care facility and uses force to grope a patient’s breasts and commit other sexual acts.
• Tiara is an administrator at an assisted living facility and tells a resident that she will stab him with a knife if he doesn’t fondle his bare skin.
• Alejandro works at a personal care home and begins to choke a resident as he starts to touch her genitals for Alejandro’s sexual arousal.

Defenses

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

• the defendant was not a “caretaker,”
• the alleged victim was not a “dependent person,” and
• the defendant was falsely accused.

Penalties

A lewd act by a caretaker on a dependent person 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
• 10 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 discuss the following in this article:

• 1. What is the legal definition of a lewd act by a caretaker of a dependent person?
• 2. Are there legal defenses?
  • 2.1. Not a caretaker
  • 2.2. Not a dependent person
  • 2.3. Falsely accused
• 3. What are the penalties, punishment, and sentencing?
• 4. Related laws
  • 4.1. Lewd acts on a minor child with no force – PC 287
  • 4.2. Lewd act on a minor by use of force or fear – PC 288b1
  • 4.3. Lewd act with a minor child, bodily harm inflicted – PC 288i

1. What is the legal definition of a lewd act by a caretaker of a dependent person?

Penal Code 288b2 PC is the California statute that makes it a crime for a caretaker to:

1. commit a lewd act on a dependent person, and
2. do so by the use of force or fear of immediate bodily injury.¹

California law defines a “caretaker” as:

“an owner, operator, administrator, employee, independent contractor, agent, or volunteer of a public or private facility that provides care for dependent persons or for those aged 65 or older.”²

Some facilities that care for dependent persons include:

• nursing homes,
• assisted living facilities, and
• personal care homes.

The law defines a “dependent person” as:

“someone who has physical or mental impairments that substantially restricts his or her ability to carry out normal activities or to protect his or her rights.”³

A “lewd act” under Penal Code 288 is:

• the willful touching of a dependent person for sexual purposes, or
• purposefully causing such a person to touch him/herself or someone else for a sexual purpose.⁴

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

2. Are there legal defenses?

A person can challenge an accusation by raising a legal defense. A legal defense may work to reduce or even dismiss a charge.

Three common defense strategies include:

1. not a caretaker
2. not a dependent person, and/or
3. falsely accused.

2.1. Not a caretaker

Please recall that a defendant can only be found guilty under this code section if he was in the role of a “caretaker.” This means it is always a defense for an accused to show that he was not a caretaker when an alleged lewd act occurred.

2.2. Not a dependent person

Please also recall that an accused can only be guilty if he committed a lewd act on a “dependent person.” It is always a valid defense, therefore, for the accused to use the facts of a case to show that the alleged victim was not “dependent.”

2.3. Falsely accused

Unfortunately, it is not at all uncommon for people to get prosecuted based on false allegations. People get falsely accused out of

• jealousy,
• revenge, and
• anger.

Thus, it is a valid defense for a defendant to say that a party falsely accused him.

3. What are the penalties, punishment, and sentencing?

A violation of this code section is charged as a felony under California law.⁵ The crime is punishable by imprisonment in the California state prison for:

• five years,
• eight years, or
• 10 years.⁶

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 who violates PC 288b2 will have to register as a sex offender for the rest of his life.⁷

4. Related offenses

There are three laws related to lewd acts by a caretaker on a dependent person. These are:

1. lewd acts on a minor child with no force – PC 288;
2. lewd act on a minor child by use of force or fear – PC 288b1, 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

California 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.⁸

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.⁹

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

4.2. Lewd act on a minor child by use of force or fear – PC 288b1

A party is guilty under Penal Code 288b1 PC when:

• he commits a lewd act under PC 287 (see 4.1 above), and
• in doing so, he uses force or violence.¹⁰

A violation of PC 288b1 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.¹¹

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 288(i)

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

PC 288(i) 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.¹²

A lewd act with a minor child, with bodily harm inflicted, is charged as a felony under California law.¹³

The crime is punishable by imprisonment in the California state prison for life with the possibility of parole.¹⁴

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

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