Penal Code § 647.6 PC – Annoying or Molesting a Child Under 18

California Penal Code § 647.6 PC makes it a crime to annoy or molest a child under 18 while motivated by a sexual interest in the child or children generally. This offense can be a misdemeanor or a felony carrying up to one year of incarceration or more depending on the case.

Examples of 647.6 PC violations include:

• Mark offers to perform oral sex on his girlfriend’s 10-year-old son.
• Arthur asks a 15-year-old, in a lewd fashion, whether she likes various sexual positions.
• Joe masturbates in a car parked outside a high school at the time that school lets out for the day.

Unlike the separate crime of lewd acts with a child, annoying or molesting a child does not require any touching whatsoever. Even still, a 647.6 PC conviction requires you to register as a sex offender and may make it more difficult to get a job and keep your child custody rights.

In this article, our California criminal defense lawyers discuss the following topics re. child molestation:

• 1. Elements of 647.6 PC
• 2. Defenses
• 3. Penalties
• 4. Related Crimes
• Additional Resources

1. Elements of 647.6 PC

For you to be convicted of annoying or molesting a child, prosecutors have the burden to prove beyond a reasonable doubt the following four elements of California Jury Instructions “CALCRIM” 1122:

1. You engaged in conduct directed at a child;
2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by your conduct;
3. Your conduct was motivated by an unnatural or abnormal sexual interest in the child; and
4. The child was under the age of 18 years at the time of your conduct.¹

Therefore you can be convicted of 647.6 PC even if the child was not actually bothered: All that matters is if a reasonable person would have been bothered by your conduct.

Words alone may constitute the annoyance or molestation, so there does not need to be any contact with the child’s body.² Indirect sexual conduct such as masturbation may also violate 647.6 PC if it is intended to be observed by a child or children.³

Perhaps the most important element of California’s child molestation law is that you were motivated by an unnatural or abnormal sexual interest or intent in a child. This can be proved by either:

1. your past actions toward a child with whom you have a prior relationship or
2. the circumstantial evidence surrounding your alleged conduct.⁴

It is not necessary that you actually intended to seduce a child.

Example:  Joe lives down the street from a high school. One afternoon he is masturbating in his bedroom when school lets out for the day. He does not realize his curtains are not fully closed. Several girls pass by his house and see him. Even though the girls are bothered, Joe’s conduct was not motivated by sexual interest in them or any other child, so he does not violate 647.6 PC.

Now, let’s say that instead Joe parks his car outside a high school and waits until school gets out for the day. As the children are leaving the campus, he begins masturbating. Because he is parked directly in front of a school at school dismissal time, his conduct is not an accident or even a simple act of voyeurism. It is conduct motivated by a sexual interest in children.

“Annoying” and “molesting” mean the same thing for the purposes of 647.6 PC

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with California sex crimes such as child molestation. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting 647.6 PC charges reduced or dismissed.

1) The Accuser/Victim Lacks Credibility

Absent a confession, a child molestation case often hinges on the credibility of the accuser and potential witnesses. Therefore, we would:

1. subpoena the accuser’s records, including school, counseling, and medical records as well as emails and social networking accounts; and
2. interview the accuser’s schoolmates, family members and friends; and
3. conduct a thorough background check on both the accuser and any alleged witnesses.

We often find that these records reveal that the child has a history of lying or that the child harbored a preexisting bias against the accused.

Example: Madison tells her mother that their neighbor, Fred, is always outside when she goes to school. Madison claims that Fred makes sexually explicit comments about her body whenever he sees her. Madison’s status updates on Facebook tell another story, however. In several of them, posted months before her accusation, she complains about her neighbor yelling at her to keep off his lawn.  She also uses a racial slur to describe Fred, and makes general comments about people of his race. When this evidence is discovered, the prosecutor dismisses the charges.

2) The Conduct Was Not Motivated by Sexual Interest

This is probably our most effective defense because it is difficult for prosecutors to prove what was going on inside of your head at a particular moment. As long as we can raise a reasonable doubt about what you were thinking, child molestation charges should not stand.

Example: 12-year old Jeremy accuses his teacher, Bill, of asking him repeatedly about what sex acts he has engaged in. However, it turns out that Bill overheard Jeremy complaining to another student that his stepfather had touched him on the inside of his thigh. Bill was only asking Jeremy about sex acts to determine whether he was being molested at home. The other student’s testimony corroborates Bill’s account. Since his conduct was not motivated by a sexual interest in Jeremy or other children, Bill has not violated 647.6 PC.⁵

3) Private Polygraph Results Support Your Story

“Lie detector tests” or polygraph examinations are usually associated with the police. However, we often conduct “private polygraph” examinations in California criminal cases.

Private lie detector tests are usually conducted by a former FBI or police polygrapher who has established credibility with the district attorney. If the results show you are telling the truth, we can take them to the prosecutor.

Even though the polygraph is inadmissible in court, it is often enough to persuade the prosecutor to drop the case or reduce the charges.

On the other hand, if the results show that you may not be telling the truth, we simply shred the results. No one else ever knows that the polygraph even took place.

Annoying or molesting a child caries sex offender registration.

3. Penalties

Absent aggravating circumstances, a first-time conviction of child molestation in California is a misdemeanor, carrying:

• up to 1 year in county jail and/or
• a fine of up to $5,000.

Subsequent 647.6 PC offenses are felonies, carrying up to one year in state prison.

Note that a first-time child molestation case can be charged as a misdemeanor or a felony if it occurred in an inhabited dwelling or trailer coach you entered without consent. The sentence is up to one year in jail or prison plus $5,000.¹⁷

If you already have a prior conviction of certain sex offenses, even a first-time child molestation charge is a felony carrying an enhanced sentence of two, four, or six years in prison. Some of these prior sex offenses include:

• Rape of a minor under 16 (261 PC),
• Continuous sexual abuse of a child (288.5 PC),
• Lewd acts with a child (288 PC), and
• Child pornography (311.4 PC).⁶

Probation

If you are convicted of violating 647.6 PC, the judge my grant you:

• summary probation for up to two years in misdemeanor cases or
• formal probation for up to five years in felony cases.

Either way, the court will order that you complete a course of counseling as one of your terms of probation. The court will also likely issue a restraining order against you that cannot be modified unless:

• the child requests it, and
• the court finds that the modification is in the child’s best interest.⁷

Sex Offender Registration

A first-time child molestation conviction in California requires you register as a tier-one sex offender for at least 10 years. Subsequent convictions require you to register as a tier-two sex offender for at least 20 years.

This information will be made public on the Department of Justice’s “Megan’s Law” website.

If your 647.6 PC conviction was for a misdemeanor, you can request exclusion from the Megan’s Law website.⁸ However, you would still have register as a sex offender for at least 10 years unless you obtain a certificate of rehabilitation earlier. 

4. Related Crimes

• Contacting a Minor with Intent to Commit a Felony – 288.3 PC: Contacting a child under 18 for the purpose of committing one of a specified list of felonies, such as rape or kidnapping.
• Criminal Invasion of Privacy – 647(j) PC: Spying on or making a video recording of someone with the intent to invade their privacy.
• Lewd Acts with a Child – 288 PC: Intentional touching of a child with the intent to sexually arouse or gratify either you or the child.
• Sending Harmful Matter with Intent to Seduce a Minor – 288.2 PC: Sending pornographic or harmful matter to a minor with the intent to engage in sexual intercourse, sodomy, oral copulation, or sexual contact with the minor.

Additional Resources

If you are struggling with sexual impulses, our California sex crime attorneys suggest you refer to the following for help:

• Association for the Treatment of Sexual Abusers (ATSA)— ATSA offers referrals, programs and resources for those suffering from sexual compulsions and sexual disorders.
• Sex Addicts Anonymous (SAA) – 12-step program to overcome sex addiction.
• Substance Abuse and Mental Health Services Administration (SAMHSA) – 24/7 confidential helpline offering referrals.
• Sex Addiction – Article and guidance by AddictionHelp.org.

Legal References: