Elements of Lewd Acts with a Minor

Willfully: An act is done willfully when it is done intentionally, rather than accidentally.  You do not need to have intended to break the law or hurt the victim in order to have acted willfully.

For example, if an adult touched a child with the intent to touch the child, the act was done willfully, even if the person did not intend or know the touching would break the law.  However, if the touching was the result of an accident, such as a gymnastics coach accidentally touching a student’s breast while helping the student perform a flip, the touching was not done willfully.

Lewd and lascivious acts: Lewd and lascivious acts are touching a child for the purpose of sexual gratification or arousal or causing the child to touch himself or herself, the defendant, or someone else for a sexual purpose.  Any act that constitutes a sexual assault crime is a lewd and lascivious act.

Using the example above, if the gymnastics coach was instead touching the student because it sexually aroused the coach, the touching would be a lewd act.

However, if a child complains of a rash on his genitals and his babysitter touches him for the purposes of examining the rash, the touching was not for the purpose of sexual gratification and would not be a lewd act.

Touching: Touching includes touching any part of the child’s body, including through clothing.

Force: An act is accomplished by force when the force used is substantially different or substantially greater than the force needed to accomplish the act itself.

For example, if a defendant grabs a child’s genitals, while forceful, the grabbing is part of the act itself.  However, if the defendant slaps the child in order to make the child undress, the force is separate from the act itself.

Duress: An act is accomplished by duress when there is a direct or implied threat of force, violence, or danger such that a reasonable person would do something he or she would not otherwise do.

Fear: An act is accomplished by fear if the child is either actually and reasonably afraid or actually and unreasonably afraid, and the defendant knows of the fear and takes advantage of it.

Additional Consequences of a Conviction for Lewd and Lascivious Acts with a Child

A conviction for a lewd act with a minor has additional consequences beyond incarceration:

• Immigration Consequences: under federal immigration law, Penal Code 288 is a crime involving moral turpitude and a crime involving domestic violence, as well as an aggravated felony, which can result in deportation and inadmissibility.
• Sex Offender Registration: mandatory registration as a sex offender under Penal Code § 290.
• Restitution to the victim for medical or psychological treatment required as a result of the offense.
• Potential loss of professional license for certain professions.

Child molestation charges carry lengthy prison sentences, as well as lifelong penalties, such as sex offender registration.  Fortunately, a skilled criminal defense attorney can use defenses above, and others, to keep a sex offender conviction off your record.  Call our criminal defense firm at 877-375-8188 for a FREE consultation with the top sex crime defense attorneys in Los Angeles.

Next Steps if You Have Been Charged with Lewd Acts with a Child

• Do not speak to the police.  If police try to question you, politely but firmly tell them that you do not wish to speak to them and that you are invoking your constitutional rights to remain silent and to have an attorney present during any questioning.
• Do not consent to any searches of your home or belongings, even if the police say they will “just get a warrant.”  Politely but firmly tell them that you do not consent to a search but will not interfere with their search if they return with a warrant.
• Do not contact any potential witnesses. This is especially important in cases with minor victims, as the district attorney or judge could view the contact as an attempt to pressure the victim and you could be charged with obstruction of justice or witness tampering.
• Contact an experienced criminal defense attorney to represent you in your child molestation case.  Call our criminal attorneys at 877-375-8188 for a FREE case evaluation.

Resources

Penal Code § 288 reads:

(a) 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.

(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.

(2) Any person who is a caretaker and commits an act described in subdivision (a) 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 described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(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.

(2) Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), 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.

(d) In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process.

(e) Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.

If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.

(f) For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the following definitions apply:

(1) “Caretaker” means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons:

(A) Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(B) Clinics.

(C) Home health agencies.

(D) Adult day health care centers.

(E) Secondary schools that serve dependent persons and postsecondary educational institutions that serve dependent persons or elders.

(F) Sheltered workshops.

(G) Camps.

(H) Community care facilities, as defined by Section 1402 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.

(I) Respite care facilities.

(J) Foster homes.

(K) Regional centers for persons with developmental disabilities.

(L) A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code.

(M) An agency that supplies in-home supportive services.

(N) Board and care facilities.

(O) Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code.

(P) Private residences.

(2) “Board and care facilities” means licensed or unlicensed facilities that provide assistance with one or more of the following activities:

(A) Bathing.

(B) Dressing.

(C) Grooming.

(D) Medication storage.

(E) Medical dispensation.

(F) Money management.

(3) “Dependent person” means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. “Dependent person” includes any person who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(g) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c).

(h) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an equivalent domestic relationship with, the dependent person under care.

(i) (1) Any person convicted of a violation of subdivision (a) shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim.

(2) The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved.

(3) As used in this subdivision, “bodily harm” means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.

(Amended by Stats. 2010, Ch. 219, Sec. 7. (AB 1844) Effective September 9, 2010.)