Lewd and lascivious acts with a minor are commonly referred to as “child molestation” charged under Penal Code 288 pc. It makes it unlawful for an adult to engage in any sexual contact with a minor.[1] This section contains three parts, each making it a crime to commit a lewd or lascivious act on:

• a child under the age of 14;
• a child 14 or 15 where the perpetrator is at least 10 years older than the child; or
• a dependent person where the perpetrator is a caretaker.

It has additional consequences when the act is committed by means of force, fear, violence, menace, or duress of immediate unlawful bodily injury.[2] Unlike other sex crimes such as rape, there is no requirement that a lewd act is committed against the will of the purported victim. Furthermore, consent is not recognized as a defense. Thus, the alleged victim’s consent does not diminish the defendant’s culpability or immunize the defendant from the penal consequences of the defendant’s act.[3]

Any theory of lewd act requires there to be either actual or constructive contact. Whether the defendant touched the alleged victim or vice versa or the purported victim touched themselves but at the defendant’s instigation. Contact ordinarily includes touching the intimate body parts of the minor by bare skin or through their clothing.

Types of 288 Charges & Elements

Lewd Acts with a Minor Under 14 – PC 288(a)

To prove someone is guilty under Penal Code 288(a), the prosecutor must prove:

1. Defendant willfully touched any part of a child’s body OR Defendant willfully caused a child to touch their own body or the body of someone else;

2. Defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of themselves;

3. The minor was under the age of 14 at the time of the act.[4]

This section is a felony that cannot be reduced to a misdemeanor. A felony conviction is punishable in the state prison for 3, 6, or 8 years.

Lewd Acts by Force or Fear – PC 288(b)(1)

Under Penal Code 288(b)(1), the law adds an additional element of “…In committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else.”[5]  Because this section involves the use of force or fear, a conviction makes it punishable by 5, 8, or 10 years in state prison.

Lewd Acts When Minor is 14 or 15 – PC 288(c)(1)

To prove someone is guilty of committing a lewd and lascivious act when the minor was 14 or 15, the prosecutor must prove:

1. Defendant willfully touched any part of the child’s body OR Defendant willfully caused a child to touch themselves, the defendant’s body, or someone else;

2. Defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of him or herself;

3. The minor was 14 or 15 years old at the time of the act;

4. When the defendant acted, the minor was at least ten (10) years younger than the defendant.[6]

PC 288(c)(1) is a wobbler allowing the prosecutor to charge someone with a felony or misdemeanor.[7] A felony conviction carries a state prison sentence of 1, 2, or 3 years. A misdemeanor conviction carries up to one (1) year in the county jail.

Legal Defenses to Penal Code 288 Charges

Specific Intent

Lewd conduct with a child requires the specific intent to arouse, appeal to, or gratify the perpetrator’s lust, passions, or sexual desire or the alleged victim. Therefore, if the touching was done by accident or the product of misfortune, then the defendant did not harbor the requisite intent. In addition, the touching could have been done for something other than a sexual purpose, such as massaging a pulled muscle or demonstrating a self-defense technique.

False Memory

Ordinarily, lewd acts are committed long before a child reports to authorities. Due to the length of the delay, a person’s memory may have been adversely affected by the passage of time. Moreover, experts undoubtedly agree that false instances have a tendency to make certain people believe sexual acts occurred. Furthermore, in the event the purported victim is still a minor, the type and manner of questions asked to the minor must be carefully reviewed by a child forensic psychiatrist to ensure the minor is answering opened ended questions versus being led to an answer – e.g., “Did you step-father touch your private part yesterday?”

False Accusation

It is far too common for children and even their parents to manipulate the system and use it against a defendant. Motivations made include revenge, financial, or a former spouse’s attempt to gain full child custody in a family law court.

Punishment & Sentencing

The maximum punishment for a PC 288 conviction is up to 10 years in prison. But someone could face a life sentence depending on the circumstances and their prior record. In addition to facing a prison sentence, the court may order restitution of up to $10,000.[8] Like all sex cases, the most damaging part of any sentence is that a conviction mandates sex offender registration for life.[9]

Contact Us to Schedule a Free Consultation

If you’ve been arrested, charged, or are under investigation for lewd acts with a minor under PC 288, there’s no question that you must retain an experienced Orange County Criminal Defense Lawyer to represent your rights. Contact us today to schedule a free confidential consultation concerning your rights and defenses.

Related Offenses

• Battery – Penal Code 242 PC
• Oral Copulation – Penal Code 287 PC
• Sexual Battery – Penal Code 243.4 PC
• Statutory Rape – Penal Code 261.5 PC
• Rape – Penal Code 261 PC

Legal References:

[1] Penal Code 288(a) – defined (“Except as provided in subdivision (i), 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.”).

[2] 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.”).

[3] See People v. Soto (2011) 51 Cal.4^th at p. 249.

[4] CALCRIM No. 1110: https://www.justia.com/criminal/docs/calcrim/1000/1110.html

[5] CALCRIM No. 1111: https://www.justia.com/criminal/docs/calcrim/1000/1111.html

[6] CALCRIM No. 1112: https://www.justia.com/criminal/docs/calcrim/1000/1112.html

[7] Penal Code 288(c)(1) – defined (“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 Penal Code 288(e).

[9] Penal Code 290 et seq.