Penal Code 288 PC is a crime committed by touching a child somewhere on his/her body for sexual purposes.1 Justice officials sometimes refer to this offense as "lewd acts on a minor under 14" or "acts of lewd and lascivious conduct."
These cases typically involve accusations that the child was touched or fondled on a sexual organ, or that some overt act of child molestation took place.
However, one can be charged with lewd acts even if the touching was not on a sexual organ, and even if the touching was done over the child's clothes (rather than on the bare skin).2
Examples of Lewd Acts on a Child
- Dennis uses his finger to rub the vagina of his 9-year-old step-daughter
- Sam, a 9th grade teacher, picks up one of his students and fondles her breast area from the outside of her clothes
- Rudy's wife is babysitting a 7-year-old girl; Rudy takes the girl into a bedroom and kisses her stomach and thighs, causing him arousal
Penalties for Penal Code 288
If the child was under 14 years old:
- Up to 8 years of California State Prison3 and a strike under California Three Strikes Law4.
- If force was used: up to 10 years of prison.5
- If there is a pattern of 3 or more incidents of lewd acts spanning a time of 3 months or greater: up to 16 years of .6
If the child was 14 or 15, and the accused was at least 10 years older than the child:
- Up to 3 years of prison.7
If the minor was 16 or 17
If the minor was 16 or 17 years old, the case would be prosecuted as a statutory rape8 or a sexual battery9.
Duty to register as a sex offender
People convicted of 288(b) or 288(c) are assigned to tier three of the California sex registry with the requirement to register for life as a sex offender:
- 288(b) includes: (1) Any person who commits lewd acts on a minor under 14 by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ... (2) Any person who is a caretaker and commits lewd acts on a minor under 14 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 to commit lewd acts
- 288(c) includes: (1) Any person who commits lewd acts on a minor under 14 with the intent described to commit lewd acts and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child ... (2) Any person who is a caretaker and commits lewd acts (a) upon a dependent person under 14, with the intent to commit lewd acts
And people convicted of 288(a) in two separate proceedings are assigned to tier three of the California sex registry with the requirement to register for life as a sex offender:
- 288(a) includes: any person who willfully and lewdly commits any lewd or lascivious act 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.
Otherwise, people convicted of lewd conduct with a minor are assigned to tier two of the California sex registry. Tier must register as a sex offender for at least twenty (20) years. Learn more about the California sex registry.10
Common defenses to a Penal Code 288 Charge
- The accuser is lying or mistaken.
- Another adult actually committed the abuse, and the child is blaming the wrong person (which we call "perpetrator substitution").
- A third party used manipulation and suggestion to "coach" the child into making an allegation of sexual misconduct.
- The contact, to the extent it occurred, was accidental.
- There was no intent to cause sexual arousal.
Unfortunately, many people get falsely accused of lewd acts with a child. False accusations can cause irreparable harm to one's reputation, career, and family life. The good news is that skilled California sex crimes defense lawyers know the most effective strategies to expose false allegations…and to vindicate their clients.
We are a law firm of California criminal defense attorneys that has enjoyed considerable success in defending clients against wrongful charges of sex crimes. Based on our experience, we drafted this article to address the following:
If, after reading this article, you have additional questions, we invite you to contact our California sex crimes defense lawyers.
The legal definition of lewd acts with a minor consists of two "facts" or "elements of the crime" that the prosecutor must prove:
- that you willfully touched any part of a child's body or that you willfully caused a child to touch his/her own body, your body, or another person's body, and
- that you did so with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of you or of the child.11
Let's take a closer look at some of these terms and phrases to better understand these elements.
You willfully commit an act if you do so deliberately or on purpose. It is not required that you intend to break a law, harm another person, or gain any advantage.12
However, inadvertent or accidental contact with the child does not constitute lewd acts.13
To "touch" any part of a child's body…or to have a child touch his/her or anyone else's body…means
- to touch bare skin, or
- to touch the person's body through his/her clothing.14
Let's look at an obvious example.
Suppose 40-year-old Richard enters the bedroom Vera, his 6-year-old stepdaughter. It's late at night and Vera is sleeping. Richard places his hands under her panties and begins rubbing her vaginal area. This arouses Richard sexually. He leaves quickly when the child awakens.
If these facts could be proven, it would clearly constitute a lewd act with a child under 14.
But it's important to note that even if Richard doesn't touch the child in a lewd or sexual manner, he could still be liable for lewd acts on a minor.15 Let's look at another example:
Suppose 40-year-old Richard is attracted to his 6-year-old stepdaughter Vera. He puts the child on his lap and reads her a storybook. While on his lap, he massages her ankles and feet (over her clothes, as she is wearing long sweats and socks). This causes him sexual arousal. After a few minutes, the child gets up and goes to another room to play.
In this example, Richard never touches the child on or near a sexual organ. He makes no contact with her bare skin. Nor does he do anything that generally would be considered sexual or lewd in nature (though obviously it is a bit creepy).
But because he touches her body and he does so intending to arouse himself, he technically has committed "lewd acts with a child."16
Practically speaking, it's doubtful this case would ever be prosecuted (if that's really all that happened). But the example illustrates just how broad the reach of Penal Code 288 can be.
You violate this law even if the touching is on the outer clothing…and even if it's not on a sexual organ…so long as your intent is to cause sexual arousal.17
With the "intent" of arousing…
With respect to arousing or gratifying sexual desires, it isn't necessary for the prosecution to prove that you or the child were actually aroused. The prosecutor must only prove that you intended to satisfy sexual desires.
Fortunately, it can be difficult to prove intent…especially if the "touch" wasn't an overtly sexual act. This is frequently a weakness in the prosecution's case…and one which a California sex crimes defense attorney can exploit.
False accusations of child sexual abuse are not uncommon. Evidence suggests that many innocent adults have been arrested, prosecuted…and sadly, convicted…for alleged child molestation that never happened.18 Moreover, a wrongful conviction for a sex offense can:
- land an innocent person in the California State Prison,
- force him/her to become a registered sex offender for 20 years or possibly life, and
- ruin his/her career and reputation.
When a child makes an allegation of acts of lewd or lascivious conduct, police and prosecutors have a tendency to accept the child's word uncritically. The focus goes to building a criminal case against the accused, rather than scrutinizing the credibility of the accuser. The allegation itself generates so much outrage, that all attention turns to "getting the bad guy" rather than stopping to evaluate whether the accusation is even true.
People have a tendency to ask:
- Why would the child make up such an allegation of lewd acts unless it was true?
- How would the minor even know how to describe these sexual things?
The fact is children make up false sexual abuse accusations based on a variety of motives. Some common reasons include:
- trying to get a step-parent or unwelcome adult out of the home.
- taking revenge on a parent or relative who the child feels is ignoring or neglecting or belittling him/her.
- seeking attention and comfort from the parents by alleging abuse by another adult.
- seeking to avoid ever again being left with a babysitter by making allegations of lewd acts against an adult at the babysitter's home.
- reacting to one parent's subtle suggestions that the other parent has been sexually inappropriate with the child, especially when a divorce or custody battle is pending.19
But where do children get the knowledge about sexual activity with which to come up with false allegations?
The fact is children today are very sophisticated when it comes to knowing about and understanding sexual matters.
This knowledge derives from:
- social media,
- popular culture, and
- from friends at school and in the neighborhood.
As a rule, kids today know significantly more about sex, and at vastly younger ages, than in any previous generation.
Sadly, this knowledge about sex can be used to form false allegations of lewd acts with a child.
Our society deems child molestation to be one of the most serious and heinous crimes. These cases tend to get considerable media coverage and to alarm the community. Because of this, law enforcement agencies devote considerable resources to investigating ‘lewd act with a child' allegations, and preparing cases for prosecution.
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:
Almost all 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 it 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 didn't want to get the accused in trouble, or that she didn't understand the nature of the abuse at the time.
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 walk a balancing act between trying 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.
"Tommy, did you 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 (predisposed to believe that sexual abuse occurred) can easily work up a story for the child and simply prod the child to agree along the way.20
If the allegation is of recent lewd and lascivious acts, or of relatively recent anal or vaginal penetration, then the police will likely order a medical examination of the child and a forensic analysis. This may include analysis of the child's body, clothes and the location of the alleged incident.
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.
Police criminalists can also take swabs from the:
- child's body,
- the child's clothes, or
- the location of the alleged sexual acts.
They will be looking for DNA — in particular the suspect's:
- skin, or
The absence of injuries or DNA can sometimes serve as evidence that any alleged penetration or sexual acts did not occur.
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 cops are on the line with the accuser, 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.
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 identify all the children who may have been exposed to the suspect, at least in a private setting.
If other children claim that the same sort of conduct occurred, this evidence can greatly enhance the prosecution's case, and may lead to additional counts of Penal Code 288.
This is often the most critical piece of the investigation. If the cops can get a confession, that will usually seal their case.
Cops choose between two interrogation strategies: (a) interview the suspect out of custody, or (b) arrest the suspect and interview him at the station or jail.
A police advantage to interviewing the suspect out of custody is that the cops don't necessarily need to read the suspect his 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's been certain allegations of lewd acts with a minor. We don't know if it's true. We just want to get your side of story."
While the police may approach the suspect in a friendly, "good cop" way, that's almost always a guise to put him at ease and conceal their true agenda. In reality, they plan to interrogate and pressure him into a confession.
If the cops 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 one's attorney present).
Even if you're factually innocent and have nothing to hide and simply deny the allegations, it's almost always a bad idea to talk to the cops. They will try to trip you up, and find subtle inconsistencies in your story – which the prosecutor could use at trial to argue that you're being untruthful.
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.
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. Here, however, are several typical lines of defense:
Especially in cases where there is no confession or physical corroboration, the prosecution's case really comes down to the word of the accuser. The case hinges on the child's credibility. So this is where the defense will usually want to focus. A criminal defense lawyer should:
- subpoena the accuser's school, counseling, and medical records, emails, and social networking accounts,
- interview his/her family, friends, schoolmates, and those she chats with online, and
- conduct a thorough background check on the accuser and any alleged witnesses.
As West Covina criminal defense attorney Nicole Valera21 explains:
"Quite often, investigations reveal that the accuser has a bias and motive to harm the accused and that the accuser has a history of being untruthful and telling lies about other people as well. When we can demonstrate this in court, it goes a long way towards undermining the accuser's credibility…and the prosecutor's whole case."
Example: Larry gets charged with Penal Code 288 because his twelve-year-old stepdaughter Tina reports that he fondled her breasts. The defense lawyer subpoenas Tina's Facebook account. It is discovered that, prior to the alleged incident, Tina sent messages her friends saying she hates Larry, she wishes her mom would dump him, and that she 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 the boy's penis. The defense lawyer subpoenas Carlos's school records. It turns out that last year Carlos accused a boy at school of punching him. The boy denied it. Carlos finally admitted that he lied, and the boy never really punched him. This school incident is presented to the jury at trial. The jury finds Martin "not guilty." The jury is unwilling to believe Carlos's allegation against Marin, given the boy's history of making false accusations.
In order for prosecutors to convict you of "lewd acts with a minor," you must willfully touch a minor, or willfully cause the minor to touch you, him/herself, or another person.
Even if the alleged "touch" was upon a female breast, or other sexual organ, if it was an accidental encounter, you are not guilty of this charge.
Example: Scott tickles his 9-year-old niece Sarah in a playful, non-sexual way. As he tickles her, he accidentally pokes his fingers along her vaginal area. Because this contact is accidental, and not intended to sexually arouse either party, Scott has not committed Penal Code 288 'lewd acts with a child under 14.'
Even if the alleged "touch" was upon a female breast, or other sexual organ, if it was an accidental encounter, you are not guilty of this charge.22
Example: Scott tickles his 9-year-old niece Sarah in a playful, non-sexual way. As he tickles her, he accidentally pokes his fingers along her vaginal area. Because this contact is accidental, and not intended to sexually arouse either party, Scott has not committed "lewd acts with a child under 14."
Penal Code 288 only prohibits contact made for the purpose of sexually arousing the perpetrator or the child. If you didn't intend to sexually arouse or gratify yourself…or arouse or gratify the minor who was involved in the alleged activity…you did not engage in child molestation.23
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 seek arousal, nor to arouse Nathan. Even though she touches his sexual organ, she has not committed a 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 you.
This means that if the minor in question is 14 or 15 years old and less than ten years younger than you, or is older than 15, prosecutors can't convict you under this law.
With respect to the age of the minor, there are two important facts to note. The first is that unlike a Penal Code 261 PC "statutory rape" charge, 24 a mistaken belief in the minor's age is not a defense to this charge.25
The second is the fact that even if the minor appeared to "consent" to the alleged activity, you will still be held criminally liable for the offense.26 This is because…under California law…minors are deemed legally incapable of giving "consent."
Most people associate "lie detector tests" with the police. But the fact is the defense may conduct "private polygraph" examinations in California criminal cases. Defense polygraphs are more advantageous to the accused because the results can be kept confidential unless the person "passes."
It works like this. Suppose we have a client who insists the allegations are false and nothing ever happened. We have him sit for a private lie detector test with one of our examiners (usually a former police or FBI polygrapher whose work has great credibility with the district attorney).
If the exam shows the client is being truthful, we can take the results to the prosecutor. This will usually result in the case getting dismissed. True, the results are not admissible in court. Yet it's often enough to convince the district attorney, who doesn't want to prosecute a factually innocent person.27
If the exam shows the client is being deceptive, we simply shred the results and never tell anyone the polygraph took place.
Sometimes we get a case where the client confessed to the police and the evidence is overwhelming that sexual improprieties did take place.
In these cases, barring a legal technicality, our strategy is not to argue that the lewd acts never happened. Rather, our strategy is to show that the client is a good person who acted out of character in an isolated incident, and that this sort of conduct is unlikely ever to recur.
We call this sort of focus on the client's good character "mitigation."
In Penal Code 288 "mitigation" cases, the issue is often whether the client will get sent to California state prison or will get probation. State prison may involve many years of incarceration. Probation involves at most one year of jail, and sometimes no actual jail time.
But before a judge may grant probation, the court must obtain a "Penal Code 288.1 report."28 This is a mental evaluation of the defendant by a trained psychologist. The evaluator will look at the circumstances of the offense and the defendant's history, and will interview the defendant. Focus is on whether the defendant is a danger to other children and whether this conduct is likely to happen again.
The penalties and sentencing vary considerably depending on the child's age at the time of the lewd acts.
If the child was under 14…
If the child was less than 14 years old at the time of the lewd acts, the offense is a felony. The penalty is either:
- Probation and up to one year in county jail, OR
- 3, 6 or 8 years in California State Prison29.
If force, violence duress or threats are used against the child, the prison range jumps to 5, 8 or 10 years.30
If the defendant has a prior related conviction, he could get prosecuted under California's habitual sexual offender law. This would elevate the sentence to 25 years to life in state prison.31
If the child was under 14, the offense is also considered a violent felony and a serious felony, and is, therefore, a strike under California's Three Strikes Law32.
If the child was 14 or 15…
If the minor was 14 or 15 at the time of the offense, and the defendant was at least 10 years older than the minor, then the offense is what's known as a "wobbler" in California.
A wobbler is an offense that prosecutors can file as either a misdemeanor or a felony. Prosecutors normally decide this based on the facts of the case and the defendant's prior criminal history.
As a felony, the penalty is either:
- Probation and up to one year county jail, OR
- 16 months, 2 years or 3 years in California State Prison.
As a misdemeanor, the penalty is probation and up to one year in county jail.33
If the minor was 16 or 17…
If the minor was 16 or 17 years of age, the case would be prosecuted instead under California's statutory rape laws (Penal Code 261.5). Under California Penal Code 261.5 PC, a "statutory rape" takes place when any person engages in sexual intercourse with a person under the age of eighteen (18).34
Alternatively, the case might be prosecuted as a sexual battery under California Penal Code 243.4(a). Under Penal Code 243.4, sexual battery is defined as touching the intimate part of another person for purposes of sexual gratification, arousal, or abuse.35
Additional Consequences of any Penal Code 288 conviction:
- Lifetime registration or 20-year registration as a sex offender per Penal Code 290, depending on the case,36
- a requirement that you pay for any medical or psychological treatment that the minor incurs as a result of the offense,37 and
- an additional and consecutive five-year state prison sentence if the minor suffers great bodily injury because you use force or violence during the offense. ("Great bodily injury" is a significant or substantial physical injury).38
It's also important to understand that each independent act of child molestation is a separate offense, punishable as its own violation.39 This means that if, for example, an individual were to fondle one part of the minor's body…and were to then fondle a different part of the minor's body…prosecutors could charge the perpetrator with two separate counts of "lewd acts with a child."
As previously stated, one of the penalties for committing "lewd acts with a minor" is a lduty to register as a sex offender.40 Depending on the case, the duty lasts for a minimum of 20 years or possibly life. You must comply with this requirement regardless of which subdivision of Penal Code 288 PC prosecutors convict you.
The failure to register as a sex offender under Penal Code 290 PC will subject you to additional misdemeanor penalties as well.41
It must be noted that a judge has no discretion to alleviate you of your duty to register as a sex offender if you are convicted of one of the offenses listed in Penal Code 290(c). However, a skilled California sex crimes defense attorney can often negotiate a reduced charge in a plea bargain that doesn't subject you to sex offender registration…Penal Code 242 PC "battery,"42 for example.
There are a variety of offenses that are related to Penal Code 288 "child molestation" either because they are:
- frequently charged in connection with a "lewd act with a minor" charge, or
- are part of a Penal Code 288 PC charge.
Below are examples of some of the most common:
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)43. 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.44
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. 45
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.
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 (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 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.46
This crime involves engaging in three or more "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.47
If the defendant is an adult, and has sexual intercourse or sodomy with a child under 10 years of age, then Penal Code 288.7 sets the punishment at 25 years to life in the state prison. If the sexual act is oral copulation under these circumstances, Penal Code 288.7 sets the penalty at 15 years to life in state prison.48
Penal Code 288a addresses the crime of oral copulation of a minor child. The statute treats oral copulation the same as lewd acts in terms of punishment. Oral copulation with a child under 14 years of age by an adult at least 10 years older is punishable by up to 8 years in state prison,49 and 12 years of force or threats are used.50 Any person who participates in oral copulation with a minor under 18 years of age commits a wobbler, punishable either as a misdemeanor or a felony with up to 3 years state prison.51
Penal Code 311, California's child pornography law, prohibits possessing or distributing materials that depict minors engaging in sexual activity (which includes displaying the genitals).52 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.
Penal Code 243.4 PC "sexual battery" prohibits touching the intimate part of another for sexual arousal, gratification, or abuse.53 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.
If the minor was 14 or 15 and less than ten years younger than you or was 16 or 17, this is the offense with which prosecutors would likely charge you. A "sexual battery" charge under Penal Code 243.4 may be filed as either a misdemeanor or as a felony.54 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.
If you persuade, entice, or lure a minor to accompany you to a location so that you can engage in a "lewd act" with that child, prosecutors could charge you with kidnapping and child molestation.55Penal Code 207 PC kidnapping under these circumstances subjects you to a five, eight, or eleven-year state prison sentence.56
You "annoy" or "molest" a child when you engage in conduct likely to disturb or irritate a child under 18 years of age, and your conduct is motivated by 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.57 You may violate this section with inappropriate language,58 or by engaging in otherwise innocent conduct…such as masturbating…if your intent is that your actions be observed by a child or children.59
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.
Nevada's equivalent of Penal Code 288 is the NRS 201.230 statute "Lewdness with a minor child under 14." This law was modeled on the California statute and is almost identical in terms of how the crime is defined. It prohibits touching anywhere on the child's body, if done for the purpose of sexual gratification.
The main difference between the two laws has to do with sentencing. The penalty in Nevada for lewdness with a minor child under 14 is life in prison even for a first offense. A second or subsequent conviction triggers life in prison without the possibility of parole.60
Call us for help…
If you or loved one is charged with Penal Code 288 lewd acts with a minor and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
¿Habla español? Visite nuestro sitio Web en español sobre actos lascivos con un niño.
1 California Penal Code 288 -- Lewd acts with a minor.
2 See Judicial Council of California Criminal Jury Instruction (CALCRIM) 1110 -- Lewd or lascivious act: Child under 14 years. ("To prove that the defendant is guilty of this crime, the People must prove that…The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [OR]…The defendant willfully caused a child to touch (his/her) own body, the defendant's body, or the body of someone else, either on the bare skin or through the clothing…")
3 California Penal Code 288 -- Lewd acts with a minor. ("(a) Any 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.
4 California Penal Code 1192.7(c)(6) and 667.5(c)(6).
5 California Penal Code 288(b)(1) -- Any 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.
6 California Penal Code 288.5 (a) -- Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
7 CCalifornia Penal Code 288 (c)(1) -- Any 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.
8 See California Penal Code 261.5(a) – Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.
9 California Penal Code 243.4 PC; Sexual battery. ("(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).")
10 California Penal Code 290 -- Sex Offender Registration Act. ("(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of…any act punishable under… [California Penal Code] Section…288 [lewd acts with a minor]…")
11 Judicial Council of California Criminal Jury Instruction (CALCRIM) 1110 -- Lewd or lascivious act: Child under 14 years. ("To prove that the defendant is guilty of this crime, the People must prove that: (Alternative 1A—defendant touched child)  A The defendant willfully touched any part of a child's body either on the bare skin or through the clothing;] [OR] (Alternative 1B—child touched defendant) [1B] The defendant willfully caused a child to touch (his/her) own body, the defendant's body, or the body of someone else, either on the bare skin or through the clothing;]  The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child; AND  The child was under the age of 14 years at the time of the act.") See also People v. Sharp (1994) 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117 ("a ‘lewd or lascivious act,' and the specific ‘intent of arousing, appealing to, or gratifying the lust or passions or sexual desires,' are separate elements which must be proven—and which must coincide -- to establish a violation of section 288.").
12 CALCRIM 1110 -- Lewd and lascivious act with a child under 14, endnote 2. ("Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.")
13 People v. Sharp (1994) 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117 ("[I]nadvertent or casual, non-offensive touching, unaccompanied by other direct or circumstantial evidence of an intent to arouse, appeal to or gratify lust, passion, or sexual desire of the defendant or the child, will not qualify as a "lewd or lascivious act" for purposes of section 288.")
14 See same ("[E]ven a seemingly innocent act, such as stroking a child's hair or rubbing her back, can be found to be ‘lewd or lascivious' when viewed in the totality of the circumstances in which it occurred… [A]ny touching of any part of the body of a child under the age of 14 can be ‘a lewd or lascivious act' within the meaning of section 288 if, in the totality of the circumstances in which it occurred, including any secretive or predatory conduct by the defendant, a reasonable person could conclude it was sexual in nature.")
15 See CALCRIM 1110 -- Lewd and lascivious act with a minor, endnote 2, above. In addition, CALCRIM 1110 also reads ("The touching need not be done in a lewd or sexual manner.")
16 See People v. Sharp (1994) 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117, endnote 13.
17 People v. Martinez (1995) 11 Cal.4th 434, 903 P.2d 1037 ("[T]he touching of an underage child is "lewd or lascivious" and "lewdly" performed depending entirely upon the sexual motivation and intent with which it is committed… the lewd character of an activity cannot logically be determined separate and apart from the perpetrator's intent. It is common knowledge that children are routinely cuddled, disrobed, stroked, examined, and groomed as part of a normal and healthy upbringing. On the other hand, any of these intimate acts may also be undertaken for the purpose of sexual arousal. Thus, depending upon the actor's motivation, innocent or sexual, such behavior may fall within or without the protective purposes of section 288. As the vast majority of courts have long recognized, the only way to determine whether a particular touching is permitted or prohibited is by reference to the actor's intent as inferred from all the circumstances.")
18 See Robin, M (1991), Assessing Child Maltreatment Reports: The Problem of False Allegations. Haworth Press.
19 Green, Arthur. (1991), "Factors Contributing to False Allegations of Child Sexual Abuse in Custody Disputes". Child & Youth Services 15 (2): 177–189.
20 Maggie Bruck and Ceci, Stephen J (1995), Jeopardy in the Courtroom. American Psychological Association.
21 West Covina criminal defense lawyer Nicole Valera is a former public defender and recognized "Superlawyer." She defends clients accused of sexually based offenses throughout Los Angeles and San Bernardino counties.
22 See People v. Sharp (1994) 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117, endnote 13.
23 See, e.g., People v. Martinez (1995) 11 Cal.4th 434, 903 P.2d 1037, endnote 17.
24 CALJIC 10.67 -- Belief as to Age -- Unlawful Sexual Intercourse...("In the crime of unlawful sexual intercourse [otherwise known as California statutory rape, Penal Code 261 PC "statutory rape" charge], general criminal intent must exist at the time of the commission of the act of [sexual intercourse]. There is no general criminal intent if the defendant had a reasonable and good faith belief that the other person was 18 years of age or older at the time that person engaged in the act of [sexual intercourse]. Therefore, a reasonable and good faith belief of such age is a defense to unlawful [sexual intercourse]. If after consideration of all of the evidence, you have a reasonable doubt that the defendant had general criminal intent at the time of the act of [sexual intercourse], you must find [him] [her] not guilty of the crime.")
25 People v. Olsen (1984) 36 Cal.3d 638, 647. ("The language in Hernandez, together with the reasoning in Tober, Toliver and Gutierrez, compel the conclusion that a reasonable mistake as to the victim's age is not a defense to a [California Penal Code] section 288 PC [lewd acts with a minor] charge. This conclusion is supported by the Legislature's enactment of [Penal Code] section 1203.066. (Stats.1981, ch. 1064, § 4, pp. 4095-4096.) Subdivision (a)(3) of that statute renders certain individuals convicted of lewd or lascivious conduct who "honestly and reasonably believed the victim was 14 years old or older" eligible for probation. The Legislature's enactment of section 1203.066, subdivision (a)(3), in the face of a corresponding failure to amend [California Penal Code] section 288 [lewd acts with a child] to provide for a reasonable mistake of age defense, strongly indicates that the Legislature did not intend such a defense to a [Penal Code] section 288 PC charge.")
But see People v. Hanna (2013), California Court of Appeal, Third Appellate District, Case No. C067178, holding that the mistake-of-fact defense applies to an attempt to commit a lewd act on a child under 14 years of age ("To attempt a violation of section 288, subdivision (a), the defendant must have specifically intended to commit a lewd act on a child under 14 years of age. If defendant's intent was to commit a lewd act on an 18-year-old, he cannot by definition be guilty of an attempt to commit a lewd act on a 13-year-old. If the facts were as he allegedly believed, the commission of the acts he attempted would not have violated section 288, subdivision (a). He would have lacked the specific intent required to commit the attempt crime. Thus, we conclude a mistake-of-fact defense may apply to the crime of attempting to commit a lewd act on a child under 14 years of age.").
26 People v. Cardenas (1994) 21 Cal.App.4th 927, 937. ("Consent, or a reasonable good faith belief in the age of a child to give consent, are not defenses to crimes charged under Penal Code section 288 [lewd acts with a minor]. (People v. Olsen (1984) 36 Cal.3d 638, 647-648, 205 Cal.Rptr. 492, 685 P.2d 52.) Therefore, consent is not an issue whether it be fraudulently obtained or freely given.")
27 Sometimes prosecutors 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.
28 See California Penal Code 288.1: Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person.
29 See California Penal Code 288(a). above at endnote 3.
30 See California Penal Code 288(b)(1), above at endnote 5.
31 California Penal Code 667.71(b)(4) (habitual sexual offenders).
32 California Penal Code 1192.7(c)(6) and 667.5(c)(6).
33 California Penal Code 288(c)(1), endnote 7.
34 California Penal Code 261.5(a), endnote 8.
35 California Penal Code 243.4 PC; Sexual battery, endnote 9.
36 California Penal Code 290 -- Sex Offender Registration Act, endnote 10.
37 California Penal Code 1203.1g -- Sexual assault on minor; restitution for costs of medical or psychological treatment of victim; condition of probation. ("In any case in which a defendant is convicted of sexual assault on a minor, and the defendant is eligible for probation, the court, as a condition of probation, shall order him or her to make restitution for the costs of medical or psychological treatment incurred by the victim as a result of the assault and that he or she seek and maintain employment and apply that portion of his or her earnings specified by the court toward those costs. As used in this section, "sexual assault" has the meaning specified in subdivisions (a) and (b) of Section 11165.1 [which includes violations of California Penal Code 288 PC "lewd acts with a child"]. The defendant is entitled to a hearing concerning any modification of the amount of restitution based on the costs of medical and psychological treatment incurred by the victim subsequent to the issuance of the order of probation.")
38 California Penal Code 12022.8 -- Infliction of great bodily injury; commission or attempted commission of certain sex offenses; additional punishment. ("Any person who inflicts great bodily injury, as defined in [Penal Code] Section 12022.7 PC, on any victim in a violation of…subdivision (b) of [California Penal Code] Section 288 PC [lewd acts with a minor]…shall receive a five-year enhancement for each violation in addition to the sentence provided for the felony conviction.")
See also California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony. ("(f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")
39 People v. Scott (1994) 9 Cal.4th 331, 347. ("Each individual act that meets the requirements of [California Penal Code] section 288 [lewd acts with a child] can result in a "new and separate" statutory violation. (Harrison, supra, 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078, italics omitted.) As some courts already recognize, a more lenient rule of conviction should not apply simply because more than one lewd act occurs on a single occasion. (See, e.g., People v. Bright (1991) 227 Cal.App.3d 105, 109-110, 277 Cal.Rptr. 612.) Under defendant's approach, the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act. In light of the special protection afforded underage victims, we cannot conceive that the Legislature intended this result.")
40  duty to register as a sex offender, pursuant to California Penal Code 290 PC -- The Sex Offender Registration Act -- ("(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to "the Act" in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c),  while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of…any act punishable under [California Penal Code] Section…288 [lewd acts with a minor]…")
41 An individual guilty of failure to register as a sex offender under Penal Code 290 PC faces up to one year in county jail or up to three years in the state prison. Failing to register is a "continuing" offense, which means that each time you violate one of your duties to register, you commit a separate offense. As a result, failing to register as a sex offender can result in a substantial prison sentence.
42 California Penal Code 242 "battery" -- ("Battery A battery is any willful and unlawful use of force or violence upon the person of another.")
43 California Penal Code 288.2 PC | Harmful matter sent with the intent of seduction of minor. ("(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.")
44 See same. ("(c) It shall be a defense to any prosecution under this section that a parent or guardian committed the act charged in aid of legitimate sex education. (d) It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes.")
45 California Penal Code 288.3 (a) -- Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense. (b) As used in this section, "contacts or communicates with" shall include direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system. (c) A person convicted of a violation of subdivision (a) who has previously been convicted of a violation of subdivision (a) shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.
46 California Penal Code 288.4 (a)(1) -- Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment. (2) Every person who violates this subdivision after a prior conviction for an offense listed in subdivision (c) of Section 290 shall be punished by imprisonment in the state prison. (b) Every person described in paragraph (1) of subdivision (a) who goes to the arranged meeting place at or about the arranged time, shall be punished by imprisonment in the state prison for two, three, or four years. (c) Nothing in this section shall preclude or prohibit prosecution under any other provision of law.
47 California Penal Code 288.5 -- Continuous sexual abuse of a child. ("(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.")
48 California Penal Code 288.7 (a) -- Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life. (b) Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.
49 California Penal Code 288a(c)(1) -- Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.
50 California Penal Code 288a(B) -- Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.
51 California Penal Code 288a(b)(1) -- Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.
52 California Penal Code 311 PC; Child pornography laws. California child pornography laws under California Penal Code 311 and its related sections prohibit: distributing child pornography, employing minors to participate in or help produce child porn, possessing child porn, advertising child pornography, and developing, duplicating, printing, or exchanging child porn. For purposes of California child pornography laws, a "child" is anyone under 18, unless he/she is an emancipated minor or involved in lawful conduct between spouses when either or both of the individuals are under 18.
53 California Penal Code 243.4 PC; Sexual battery, footnote 9.
54 See same.
55 California Penal Code 207 PC; Kidnapping. ("(b) Every person, who for the purpose of committing any act defined in [California Penal Code] Section 288 [lewd acts with a child], hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.")
56 California Penal Code 208; Kidnapping; punishment. ("(b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order.")
57 See same.
58 People v. La Fontaine (1978) 79 Cal.App.3d 176, 144 Cal.Rptr. 729 (Defendant, who offered to perform oral sex on the victim, had one hand on the steering wheel of the vehicle and the other hand on the seat approximately six or seven inches from the victim's leg. At no time did he touch the child or make any movement or motion toward him.).
59 See People v. Phillips (2010) 188 Cal.App.4th 1383, 116 Cal.Rptr.3d 401 ("Penal Code section 647.6, subdivision (a)(1) is violated when a defendant engages in the requisite annoying or offensive conduct, motivated by an unnatural or abnormal sexual interest in a specific child or children generally, with the intent that the conduct be observed by a child or children.").
60 Nevada Revised Statutes 201.230.