Penal Code § 288 PC – Lewd Acts With a Minor Child

California Penal Code § 288 PC prohibits lewd and lascivious acts with a child. Commonly referred to as child molestation, this crime is broadly defined as any touching of a child under the age of 14 when done for sexual purposes.

Examples

• Dennis places the hand of his 8-year-old stepdaughter on the crotch of his pants.
• Sam, a 9th-grade teacher, gropes a student’s breasts through her clothes.
• Ruby kisses the inner thighs of a child she is babysitting for the purpose of causing herself sexual arousal.

Penalties

Lewd and lascivious acts with a child is usually a felony. The sentence turns on the age of the child and other circumstances of the case, as this chart shows.

To help you better understand this complex and sensitive area of the law, our California criminal defense lawyers discuss:

• 1. Elements of The Crime
• 2. Lewd Act by Force or Fear
• 3. How does the prosecutor prove sexual intent?
• 4. Can I get probation or a suspended sentence?
• 5. Additional Consequences
• 6. Will I have to register as a sex offender?
• 7. Defenses
• 8. Statute of Limitations
• 9. Related Offenses
• 10. Civil Lawsuits
• Additional Reading

Accidentally touching a child’s groin area is not a “lewd act” under CA Penal Code 288

1. Elements of The Crime

The elements of lewd acts with a minor under California Penal Code 288(a) PC are spelled out in Jury Instruction “CALCRIM” 1110. For you to be convicted, prosecutors must prove beyond a reasonable doubt the following three elements:

1. You willfully touched any part of a child’s body either on the bare skin or through the clothing, or you willfully caused a child to touch their own body, your body, or the body of someone else, either on the bare skin or through the clothing;
2. You committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of yourself or the child; and
3. The child was under the age of 14 years at the time of the act.

You commit an act willfully if you do it on purpose. It is not necessary that you intend to:

• break a law,
• harm another person, or
• gain any advantage.

This means that any accidental contact with the child – whether of a sexual organ or not — does not constitute a lewd act under Penal Code 288.

Furthermore, actual arousal is not required. The key is whether the touching was on purpose and intended to cause arousal or to satisfy a sexual desire.

Attempted Child Molestation

More and more we are seeing prosecutors bringing charges of attempted lewd acts with a minor. This is where you allegedly:

• took a substantial step towards molesting a child, but
• no sexual touching occurred.

An example of attempted child molestation would be asking a child to touch your private parts, but the child refuses.

Each Lewd Act as a Separate Count

Every individual lewd act upon a person can be prosecuted as a separate criminal count. It does not matter if there is no pause between the acts.

So if you grope a child’s behind and then grope their pubic area, you face two separate PC 288(a) counts.¹

2. Lewd Act by Force or Fear

Under Penal Code 288(b)(1), you face harsher penalties for lewd acts on a child if you use:

• Force,
• Violence,
• Duress,
• Menace, or
• Threats that place the child in fear of immediate and unlawful bodily injury to the child or someone else.

Let’s take a closer look some of these terms.

“Force”

The force required for a Penal Code 288(b)(1) conviction must be substantially different from or greater than the wrongful touching itself.

Example: Victor grabs Lisa’s vagina. This is a violation of Penal Code 288(a) because the force is part of the act itself. Though if Victor slaps Lisa in order to make her take off her panties, he has used force that is not part of the act itself. This makes the lewd act one involving force and subjects Victor to increased penalties.

“Fear”

A lewd act is accomplished by fear if:

• The child is actually and reasonably afraid, or
• The child is unreasonably afraid, and you know and take advantage of it.

“Duress”

Duress is:

“The use of a direct or implied threat of force, violence, danger, hardship, or retribution [payback or revenge] sufficient to cause a reasonable person to do, or submit to, something that they would not otherwise do or submit to.”

Examples may include:

• Threats to harm the victim,
• Physically controlling the victim if the victim attempts to resist, and
• Warnings to the victim that revealing the molestation would jeopardize their family.

When deciding whether a lewd act was accomplished by duress, a jury may consider the totality of the circumstances, including:

• The age of the child,
• The child’s relationship to you,
• The difference in size between the victim and you, and
• The location where the interaction took place.

“Menace”

California law defines “menace” as a

• threat,
• statement, or
• act showing an intent to injure someone.²

Example: 11-year-old Callie’s stepfather tells Callie that if she does not touch his penis he will hurt her little brother. Even if it is an idle threat, he has still used menace to accomplish his sexual exploitation of her.

The use of force or violence can make the charge even more serious.

3. How does the prosecutor prove sexual intent?

Intent is one of the most difficult elements of a crime to prove. Factors the jury can consider include:

1. The context in which the touching occurred,
2. Whether you and the alleged victim know each other,
3. The nature of the touching, and
4. The absence of an innocent explanation.

Examples of situations in which California courts have upheld a PC 288 conviction have included:

• A babysitter rubbed the victim’s lower back, stomach, and thigh. Lewd intent was inferred from charges of sexual intercourse and genital contact involving other victims.
• An armed stranger pushed the victim into a more isolated spot and made her lower her pants.
• A stranger put his hand inside the victim’s pants and rubbed her stomach and crotch.³

4. Can I get probation or a suspended sentence?

Probation is possible following a California conviction of lewd acts with a child under 14 without force or fear (PC 288(a)). However, the judge will grant probation only if:

1. there are special and unusual circumstances justifying probation;
2. probation serves the interest of justice; and
3. letting you out of custody does not pose a danger to the community.

Meanwhile, judges cannot grant suspended sentences or split sentences in PC 288(a) cases. Therefore, any incarceration must be served in state prison, not county jail.

Furthermore, you cannot serve any part of your sentence while on house arrest or through a work release program – even with electronic monitoring.

Note that probation is also possible in cases of attempted child molestation.

5. Additional Consequences

Multiple Convictions

When you get convicted of two or more counts of child molestation in the same case, judges can order that the sentences run concurrently (at the same time).

Alternatively, the judge can order the maximum sentence for one count and then two additional years for the other counts, all to run consecutively (one after the other).

Example: Tom is convicted of two counts of PC 288(a), which carries a sentencing range of three years (the minimum term), six years (the middle term), or eight years (the maximum term). The judge then has the choice to order:

• three years for both counts to be served concurrently, so three years total;
• six years for both counts to be served concurrently, so six years total;
• eight years for both counts to be served concurrently, so eight years total; or
• eight years for the first count and two years for the additional count to be served consecutively, so ten years total.

Three Strikes

A lewd act against a minor under 14 is considered both a serious felony (PC 1192.7) and a violent felony (PC 667.5). Therefore, this crime is a “strike offense” under California’s “Three Strikes” Law (PC 667).

You face double penalties if you get convicted of a second felony. Meanwhile, a third felony carries 25 years to life.⁴

Collateral Penalties

If you are convicted of a lewd act with a minor, you face collateral consequences besides incarceration and a fine. These include:

• Potential victim restitution in the form of payment for the victim’s medical or psychological treatment
• Mandatory registration as a California sex offender (discussed below)
• Being the “adverse party” in a criminal protective order (“restraining order”)
• Higher sentences for future convictions
• Loss of the right to own a firearm
• Immigration consequences, including possible removal (deportation) from, or denial of entry (inadmissibility) into, the United States
• Disqualification from serving in the military
• The potential suspension or loss of a professional license (such as a license to practice law or medicine)⁵
• Civil lawsuits by the victims

A conviction for a lewd act with a minor of any age requires registration as a California sex offender.

6. Will I have to register as a sex offender?

You typically must register for life as Tier 3 sex offenders for:

• A second or subsequent conviction under PC 288(a) – lewd acts on a child without force or fear, or
• Any conviction under PC 288(b)(1) – lewd acts on a child accomplished by force of fear.

Meanwhile, you must register for 20 years as Tier 2 offenders for a first-time conviction under Penal Code 288(a) – lewd acts on a child without force or fear.⁶

A judge has no discretion to alleviate your duty to register as a sex offender. However, we may be able to get a plea bargain to a lesser offense such as simple battery that does not require registration as a sex offender.

7. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with lewd and lascivious acts against a child. In our experience, the following defenses have proven very effective with prosecutors, judges, and juries.

Before we discuss them, it is important to note that the child’s consent is not a defense to charges of lewd acts with a minor. Under California law, a minor cannot consent to an unlawful sexual act.

The Child Is Lying

Often the prosecution’s case hinges on the child’s credibility. This is especially true where there is no confession or physical corroboration.

To determine whether the child is truthful, we would:

• Subpoena your accuser’s school, counseling, and medical records as well as emails and social networking accounts,
• Interview the child’s family, friends, schoolmates, and online contacts, and
• Conduct a thorough background check of your accuser and any alleged witnesses.

Example: Larry gets charged with Penal Code 288 after his 12-year-old stepdaughter, Tina, reports that he fondled her breasts. An investigation reveals that prior to the alleged incident, Tina texted her friends that she hates Larry and has a “plan to get him out of the house for good.” When this evidence is taken to the prosecutor, the case gets dismissed on the basis of false allegations.

Mistaken identification is a common defense to Penal Code 288

The Accuser Is Mistaken

Sometimes a child was touched inappropriately but is confused about the identity of the perpetrator. This is especially common when:

• You were unknown to the child,
• The touching took place in a dark or unfamiliar place,
• The perpetrator was a different race than you, or
• The child was very young.

We will look for evidence that could undermine a child’s identification of you as the perpetrator.

The Touching Was Accidental

To violate Penal Code 288, you must willfully touch a minor or cause the minor to touch themself, you, or a third party. Accidents are not crimes.

Example: Scott tickles his nine-year-old niece Sarah in a playful, non-sexual way. As he tickles her, he accidentally touches her vaginal area through her clothes. Because the contact is accidental, Scott is not guilty of lewd acts with a child.

There Was No Intent to Arouse

Penal Code 288 only prohibits contact made for the purpose of sexually arousing you or the child. If you did not intend to sexually arouse or gratify yourself or the minor, it is not child molestation.

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 arouse either herself or Nathan sexually. Even though she touches his sexual organ, she has not committed a crime.

The Minor Does Not Fit the Age Criteria for the 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 10 years younger than you.

This means that you are not guilty under PC 288 if:

• The minor is 14 or 15 and less than 10 years younger than you, or
• The minor is older than 15.

Note, however, that you may still be charged for related sex crimes, such as statutory rape or sexual battery.

The Police Committed Misconduct

Sexual offenses against children are prosecuted vigorously in California — sometimes over-vigorously. Ways the police or prosecutor can violate your rights include:

• An illegal search and seizure,
• A coerced confession,
• Entrapment, or
• Other police misconduct such as false testimony or planted evidence.

When evidence in a PC 288 prosecution is obtained in violation of California law or your constitutional rights, we often are able to get it excluded.

You Were Legally Insane

Insanity is a defense to any criminal charge if we can prove that you:

1. Did not understand the nature of your criminal act, or
2. Did not understand that what you were doing was morally wrong.⁷

However, this is a difficult argument to convince juries of in child sex cases. We would rely on expert witnesses to try to show that your actions were beyond your control.

You Were Intoxicated

Being drunk or high could be a defense to lewd acts charges if you can prove your intoxication prevented you from having intent to gratify sexual desire. Though as with insanity, this is a difficult argument to get by juries in child sex cases.

Intoxication is always a more effective defense if we can show you were drugged without your knowledge or against your will. Juries tend to be more forgiving of people who commit criminal acts while involuntarily intoxicated.⁸

You Passed a Polygraph

One way to defend charges under Penal Code 288 is with a private defense polygraph examination. Even though private polygraph results are not admissible in court, they can be advantageous to you. This is because the results can be kept confidential unless you “pass.”

We work with a variety of examiners who are former police or FBI polygraphers and whose work has great credibility with the district attorney. If the exam shows you are being deceptive, we simply shred the results and never tell anyone the polygraph took place. If, on the other hand, the exam shows you are being truthful, we can take the results to the prosecutor.

You Get a Favorable Mental Evaluation

Perhaps you already confessed to the police, and/or the evidence clearly supports the charges.

In these cases, our strategy is to obtain a “Penal Code 288.1 report” (mental evaluation) by a trained psychologist or psychiatrist. The evaluator will interview you and look at:

1. The circumstances of the offense, and
2. Your history.

If the report suggests you are not a danger to other children and are unlikely to re-offend, we will use it to argue for probation instead of prison time.

8. Statute of Limitations

Under California Penal Code 801.1, felony prosecution for a lewd act against a minor must be brought before the victim turns 40. This statute of limitations applies to any crimes committed on or after January 1, 2015.

California law permits prosecution for lewd acts against a child anytime before the victim’s 40th birthday

9. Related Offenses

• Aggravated sexual assault of a child (PC 269)
• Annoying or molesting a child (PC 647)
• Arranging a meeting with a child for lewd purposes (PC 288.4)
• Child pornography (PC 311)
• Contacting a minor with intent to commit a sexual offense (PC 288.3)
• Continuous sexual abuse of a child (PC 288.5)
• Kidnapping (PC 207)
• Oral copulation with a minor (PC 287)
• Sending harmful matter to seduce a minor (PC 288.2)
• Sex with a child under 10 (PC 288.7)
• Sexual battery (PC 243.4)

Interrogation of the suspect is often the most critical piece of a Penal Code 288 investigation.

10. Civil Lawsuits

In addition to filing criminal charges, victims of lewd acts may bring a civil sex abuse lawsuit. Lawsuits for sexual abuse must be brought by the later of:

• Within 8 years of the plaintiff turning 18, or
• Within 3 years of the date on which the plaintiff discovers — or reasonably should have discovered — that psychological injury or illness occurring after the age of majority was caused by the sexual abuse.⁹

Plaintiffs can sue even if you are never charged or convicted under Penal Code 288.

Moreover, the plaintiff does not need to prove the lewd act “beyond a reasonable doubt” to win a civil lawsuit. Instead, they must prove their claim by a preponderance of the evidence (that it is “more likely than not”) that you are liable.¹⁰

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Lewd or Lascivious Acts with a Child under Fourteen: California’s Extension of Force under Penal Code Section 288 – Criminal Justice Journal.
• Sex offender residence restrictions and sex crimes against children: A comprehensive review – Aggression and Violent Behavior.
  
• Designing a Penal Code 288 Rehabilitation Curriculum – California State University, Stanislaus.
• Criminal consequences of childhood sexual victimization – Child Abuse & Neglect.
• Are Sex Offenders Moving into Social Disorganization? Analyzing the Residential Mobility of California Parolees – Journal of Research in Crime and Delinquency.

Also see our related article, How do police investigate lewd act allegations?

Legal references: