If caught engaging in lewd conduct with a child, you will face severe charges. The general public stigmatizes the suspect before they are even prosecuted or found guilty, and the punishment for this crime is one of the severest imposed in California. A conviction may result in incarceration, fines, and registration as a sex offender for life. Consequently, you should not waste any time if you are under investigation, arrested, or charged with lewd acts against a minor.
At California Criminal Lawyer Group, we believe everyone is innocent until proven guilty. We will not allow a false accusation or misunderstanding to ruin your reputation and deprive you of your freedom. If you have been charged, arrested, or are under investigation for lewd conduct with a child in Anaheim, call us to schedule a complimentary consultation with one of our experienced sex crime lawyers. Our lawyer will review your case details then find a way to best help you.
Defining Lewd Acts Upon a Child
The criminal offense of lewd conduct on children is outlined under California 288 PC. Under this Penal Code section, it is against the law to willfully do any sexually gratifying or wanting acts with the body of or upon a minor below fourteen years, aiming to arouse, appeal to, or gratify your sexual desires or those of the child. Common behaviors considered lewd conduct with a child include:
- Forcing a child to undress or watch you undress
- Orally copulating with a minor
- Kissing a child on their body or lips
- Fondling the breasts of a young girl over/under clothing
- Touching a minor's anus or genitals over or under clothing
If the district attorney believes they can prove that you deliberately acted crudely or illicitly towards a child, they can press felony charges against you. For the judge to convict you of acting in a sexually motivated way towards a minor, the district attorney must show the following took place:
- You acted intentionally
- You committed a sexual or crude act upon the minor
- The child involved was below fourteen years old
- Your conduct was meant to arouse you or the minor involved or gratify your or the child's sexual desires.
Should you be convicted of these charges, you may be incarcerated for a maximum of eight years, face a fine that does not exceed ten thousand dollars, and be required to register as a sex offender.
Lewd Acts Achieved Through Force/Fear
Should the prosecutor prove you used force/fear to make a minor participate in or perform lewd conduct, it can result in enhanced penalties. For you to be found guilty of using fear/force, the prosecuting attorney must show that your action met the definition of any of the terms mentioned below:
- Menace— an act, statement, or threat showing intent to hurt someone
- Duress— you are proven to have used threats of force, danger, violence, retribution, or hardship to make a reasonable person submit to or do something they would not otherwise do or submit to.
- Fear— you accomplish lewd conduct through fear if the minor is reasonably scared or unreasonably frightened, and you use it to your advantage to do the lewd act.
- Force— you restrained, hit, threatened, or hindered the child from performing the lewd act.
If you are convicted of using force, duress, violence, fear of imminent physical harm, or menace against the minor to commit sexually-motivated lascivious conduct, you will face felony consequences. These consequences include ten years in prison, a maximum fine of ten thousand dollars, and the sex offender registration requirement.
Lewd Acts Leading to Bodily Injury to a Victim Under Fourteen Years
You can be subject to harsher sentencing if you are convicted of lewd conduct on a minor below fourteen years that made the victim suffer bodily injury. California laws concerning lascivious conduct in which a minor is injured include:
- PC 12022.8— a five-year sentence enhancement for inflicting significant physical injury.
- PC 288i— life in prison for personally causing physical injury upon a victim below fourteen years.
- PC 667.61(d)(7)— twenty-five years to imprisonment for life for personally causing physical injury upon a victim below fourteen years
Lewd Acts Upon Fourteen- and Fifteen-Year Old Victims
If you are at least ten years older than a victim aged fourteen or fifteen, measured from both birthdays, you will face charges of committing lewd conduct with a child. But this is considered a wobbler offense, meaning the district attorney can charge it either as a felony or misdemeanor. If convicted of a misdemeanor offense, you will face a year in jail. And if it is a felony conviction, you will be subject to a maximum of three years.
Call a lawyer right away should someone accuse you of lewd acts upon a fourteen or fifteen-year-old victim. The lawyer may be able to fight for your acquittal in court or push for you to face misdemeanor consequences should you be found guilty.
Lewd Acts Upon Sixteen- and Seventeen-Year Old Children
Supposed lewd conduct committed on a sixteen- or seventeen-year-old minor is prosecuted under different California laws. If you are arrested for committing lewd conduct on a child that falls under this bracket, you will be charged under:
- PC 261.5— the statutory rape statute, which comes into play when you have sex with an individual aged below eighteen years, irrespective of whether the intercourse was consensual or the child did initiate it. This is considered a wobbler crime. The case facts determine whether you will face misdemeanor or felony charges. A conviction can lead to a prison sentence that does not exceed four years and the sex offender registration requirement.
- PC 243.4— this is the California sexual battery law that applies when you are arrested for touching someone else's intimate parts to achieve sexual arousal, abuse, or gratification. A conviction for a misdemeanor carries up to a year in jail, the sex offender registration requirement, and a maximum fine of two thousand dollars. A conviction of a felony can result in a prison sentence for a maximum of four years, up to ten thousand dollars in fines, and the sex offender registration requirement.
A Second/Subsequent Conviction Under PC 288
Apart from being charged under 288 PC, you may be prosecuted under PC 667.71(b) if you have a prior sexual offense conviction. PC 667.71b is the state's habitual sex offender (HTO) statute. As an HTO, you will face a punishment of twenty-five years to imprisonment for life.
Additional Repercussions for a Conviction of Lewd Act
If you are convicted of lewd acts, you can face several collateral consequences, including:
- Immigration repercussions, including possible deportation (removal) from or inadmissibility (denied entry) into the U.S
- Losing your right to possess/own a gun
- Losing your professional license (for instance, your license to practice medicine or law)
A Lewd Conduct Accomplished Through Force Is a Strike Under Law
Lewd conduct achieved by threats or force against a child below fourteen qualifies as a serious felony and a strike under both:
- PC 667, the state's Three Strikes Law, and
- PC 667.51, the state's One Strike Law
Per the state's One Strike Law, you will be subject to twenty-five years to life imprisonment if you inflict physical injury on a Penal Code 288 victim. And per the state's Three Strikes law, you will be subject to an increased prison term for any PC 288 conviction if you have a previous strike conviction.
The Requirement to Register as Sex Offender In Detail
Being convicted under PC 288 requires you to comply with the sex offender registration requirement. Sex offenders in California are categorized into three groups (known as tiers), depending on how severe their crime is, as follows:
- Tier 1 offenders are required to register as sex offenders for ten years minimum.
- Tier 2 offenders are supposed to register for twenty years minimum.
- Tier 3 offenders are needed to register for life.
If you are convicted for the first time under this Penal Code, you will be considered a Tier 2 offender. A Tier 2 sexual offender must comply with the sex offender registration requirement for at least twenty years. Registration as Tier 3 (for life) is required for:
- A conviction under 288(b)(i) PC.
- Any second/subsequent conviction under Penal Code 288(a).
Statute of Limitations for Lewd Conduct Upon a Minor
PC 801.1 permits prosecution for felony violations of 288 PC to start at any time before the alleged victim's fortieth birthday. This statute of limitations for prosecution applies to lewd conduct committed after 1st Jan 2015 (or behavior that statute of limitations had not yet run as of that date).
Supposed violations that occurred before 2015 are intricate, and you should discuss them with a skilled sex crimes lawyer.
However, the critical thing to remember is that California sex offenses can be charged many years after the supposed acts allegedly occurred.
Defending Against PC 288 Violation Charges
As we have seen, lewd conduct against a minor carries harsh penalties. Luckily, there are several ways of defending yourself against these charges, with the help of a skilled criminal defense lawyer, to avoid a conviction. These defenses include:
You Are a Victim of Unlawful Search/Seizure or Other Law Enforcement Misconduct
In California, prosecutors vigorously prosecute sexual crimes against minors— over-vigorously sometimes. If the proof in a 288 PC prosecution is acquired illegally or in violation of an accused’s legal rights, an experienced sex crimes attorney will usually seek to have it excluded from the case. Ways the prosecution team/police may violate a 288 PC accused’s rights include:
- An unlawful search/seizure
- Coerced confession
- Police misconduct like planted evidence or false testimony
The Minor Does Not Fall Under the Age Bracket for the Offense
We have two primary forms of child molestation criminalized under PC 288— performing lewd conduct with a minor under fourteen years and performing lewd conduct with a child fourteen or fifteen years old, who is at least ten years younger than the accused. This means that you should not be convicted under 288 PC if the child is fourteen or fifteen years and less than ten years younger than you or the child is more than fifteen years. However, note that you may still face charges under a different California law like sexual battery law (PC 243.4) or statutory rape law (PC 261), as we mentioned above.
Private Polygraph Examinations as a Defense
Another way of defending charges under 288 PC is using private polygraph examinations. Many people link the lie detector exams with law enforcement officers. However,m private individuals can also conduct polygraph examinations. Although the results of private polygraph exams are not admissible, they come with various advantages to the defendant because they can remain confidential except if the defendant passes.
How Private Polygraph Examinations Work
At times a person accused of breaking 288 PC law insists the allegations against them are false, and nothing like that happened. In a case like this, the defendant’s lawyer may have them (the defendant) submit to a private polygraph exam with an examiner hired by the lawyer. If the test results show the defendant is lying, the results are simply shredded, and no one will ever know the polygraph exam took place.
On the contrary, if the test results show the accused is telling the truth, the results can be taken to the district attorney. Although test results are inadmissible in court, they are usually enough to persuade the prosecutor, who does not want to charge a truly innocent individual. In other cases, the prosecution may need the defendant to undergo a follow-up lie detector test with a law enforcement polygrapher and pass the test before dropping the case.
The Contact Was Unintentional
For the judge to find you guilty under PC 288, you must have willfully touched a child victim. Or, you must have willfully caused the child to touch themselves, you, or someone else. If the touching was unintentional, you are not guilty.
The Victim is Mistaken
A minor may sometimes be inappropriately touched, but they become confused about who exactly touched them (the perpetrator's identity). This is particularly so when:
- The accused was not known to the victim
- The touching occurred in an unfamiliar or dark place
- The minor was so young
- The perpetrator was of a different race than the accused
A skilled defense lawyer will conduct a thorough investigation of the circumstances surrounding the alleged crime to find facts that may undermine the victim’s ID of the accused as the actual perpetrator
The Minor Is Telling Lies
Usually, the prosecutor's case revolves around the minor's credibility. Mainly, this is true where the police did not receive physical corroboration or draw a confession from the accused. To establish whether the victim is telling the truth, an expert sex crimes lawyer will usually:
- Conduct a comprehensive background check on the child and any supposed witnesses
- Interview the victim's online contacts, schoolmates, friends, and family
- Subpoena the victim's social networking accounts, emails, and school, medical, and counseling records
Often, investigations disclose that the victim is biased or someone has coached them to falsely/wrongly accuse the suspect. Or, the investigation will reveal that the victim tends to tell lies about others. If your lawyer can prove this before the jury, it will undermine the victim's credibility and the prosecution's entire case.
You Did Not Have The Intention to Arouse/Gratify
PC 288 only criminalizes contact performed to gratify or arouse the offender or the minor sexually. If you did not mean to gratify or arouse yourself or the child sexually, it does not qualify as lewd acts with a minor.
It is critical to note that the minor's consent is not a valid defense against PC 288 charges. Under California statute, a child cannot agree to an illegal sexual act. Also, it is essential to keep in mind that every scenario, suspect, accuser, and case is different. A skilled sex crimes defense lawyer will need to review all the facts of your case before building their defense strategy.
Crimes Related to PC 288 Violation
Various sex crimes are often prosecuted alongside 288 PC or are considered lesser included crimes. Some of these crimes include:
PC 288.7, Sexual Intercourse with a Child Below Ten Years Old
A grown-up who has sexual intercourse with a minor under ten years violates PC 288.7. Violating this law is charged as a felony and is punished by:
- Fifteen years in prison to life imprisonment for oral copulation (PC 288b)
- Twenty-five years in incarceration to imprisonment for life for sodomy or sexual intercourse (PC 288.7a)
PC 288.5, Continually Abusing a Minor Sexually
PC 288.5 is the state’s law prohibiting abusing a child sexually and continually. This offense involves more than two sexual acts of lascivious/lewd conduct over three months with a minor below fourteen years. If convicted, you will face between six and sixteen years in prison.
PC 288.4, Planning a Meeting With a Minor for Purposes of Committing Lewd Acts
If you plan a meeting with a child or a person you believe is a child to commit lewd acts, the prosecution could charge you with a PC 288.4 violation. Simply planning a meeting under PC 288.4 is considered a wobbler. A felony is punished by a maximum of three years in prison. If you go to the scheduled meeting point, the crime is considered a straight felony. The penalty upon a conviction is a maximum of four years in prison.
PC 288.3, Contacting a Child to Perpetrate a Felony Offense
If you reach out to a minor (for instance, by verbal chat, text, email, or phone) intending to commit any felony offense, like lewd acts, sodomy, rape, creating child pornography, or kidnapping, the prosecution may charge you under PC 288.3. An instance of reaching out to a child intending to perpetrate a sex crime is messaging a minor because you would like to plan a sexual meeting.
PC 288.2, Sending Harmful Content to Seduce a Child
If you consciously email or send an erotic matter to a child intending to arouse yourself or them, the prosecution may charge you under 288.2 PC. An instance of sending destructive content intending to arouse yourself or the minor includes having an online chat with a minor you believe is twelve years old, then emailing them a nude picture.
PC 287, Orally Copulating with a Child
PC 287 is the state’s law prohibiting oral copulation with a child. This law criminalizes adults participating in oral sex acts with someone under eighteen years. The consequences for violating this law vary based on:
- The child’s age
- Whether the sexual act is achieved by menace, duress, violence, force, or fear of imminent and illegal physical injury upon the victim or someone else
- The age differences between the accused and the minor
If the child is below fourteen years old, the crime is a straight felony punishable by a prison sentence between three and twelve years.
PC 647.6, Molesting or Annoying a Child Below 18 Years
You molest or annoy a child when you perform an act likely to irritate or disturb them, and your behavior is sexually motivated. Under this law, you need not touch any body part of the child. You may break this law by:
- Engaging in innocent conduct like masturbating if you intend for a child observe your actions, or
- Using improper language
Contact a Orange County Sex Crimes Attorney Near Me
Crimes against minors are among the most severely punished in California. Whereas the public may see an accusation as similar to being guilty, an experienced lawyer understands that false allegations, misunderstandings, and mistaken identity are common. At California Criminal Lawyer Group, we have a proven track record of defending clients from these forms of accusations. Do not let a false accusation or misunderstanding damage your reputation and deny your freedom. Call us today at 714-766-0965 to schedule a free consultation and case evaluation with one of our lawyers. We will mount a winning defense strategy for you. Call us right away to learn how we will help you. We serve clients facing lewd-conduct-with-a-minor charges or other criminal charges in Anaheim, CA.