Have You Been Charged with Lewd Conduct with a Minor or Penal Code (PC) 288?

California Child Molestation Defense


Types of Lewd Acts with a Minor

288 (a):

If the child was under 14 years old, the offense will be charged under Penal Code § 288(a):

The prosecutor must prove the following elements:

  1. Willful and lewd touching of a child, or willfully causing the child to touch himself, the defendant, or another
  2. The child was under 14 years of age
  3. The touching was for the purpose of sexual arousal of the defendant or the victim

Penalties:

The offense is a felony, and is punished by three, six, or eight years in state prison.  Punishment can also include a fine of up to $10,000. The offense can also be punished by felony probation and up to one year in county jail.

Penal Code § 288(a) is a strike, and is considered a serious and violent felony.

If the child was injured by the defendant, the offense is punishable by seven year to life in prison.

288 (b)(1):

If force was involved, the offense will be charged under Penal Code § 288(b)(1):

In addition to the elements for § 288(a), the prosecutor must also prove:

  1. The touching was accomplished through the use of force, violence, duress, menace, or fear of injury to the child or another person
  2. The offense involved separate victims or one victim on separate occasions

The offense is a felony, and is punished five, eight, or ten years in state prison.  Felony probation can be granted with up to one year in county jail.

Penal Code § 288(b)(1) is a strike, and is considered a serious and violent felony.

Penalties:

The offense is a felony, and is punished by three, six, or eight years in state prison.  Punishment can also include a fine of up to $10,000. The offense can also be punished by felony probation and up to one year in county jail.

Penal Code § 288(a) is a strike, and is considered a serious and violent felony.

If the child was injured by the defendant, the offense is punishable by seven year to life in prison.

288 (c):

If the child was 14-15 years old, the offense will be charged under Penal Code § 288(c):

The prosecutor must prove the following elements:

  1. Willful and lewd touching of a child, or willfully causing the child to touch himself, the defendant, or another
  2. The child was either 14 or 15 years old
  3. The defendant was 10 or more years older than the child
  4. The touching was for the purpose of sexual arousal of the defendant or the victim

The offense is a “wobbler,” which means it can be charged as either a felony or a misdemeanor.  If charged as a felony, the offense is punished by one, two, or three years in prison, or by felony probation with up to a year in county jail.  Penal Code § 288(c) is not a strike, and is not considered a serious or violent felony.

If charged as a misdemeanor, the offense is punished with probation and up to one year in county jail.

Penal Code § 288(b)(1) is a strike, and is considered a serious and violent felony.

Penalties:

The offense is a felony, and is punished by three, six, or eight years in state prison.  Punishment can also include a fine of up to $10,000. The offense can also be punished by felony probation and up to one year in county jail.

Penal Code § 288(a) is a strike, and is considered a serious and violent felony.

If the child was injured by the defendant, the offense is punishable by seven year to life in prison.

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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.

Defenses to Child Molestation Charges

  • Intent: A key element in these cases is that the contact was made for the purpose of sexual arousal of the defendant or victim.  If there was no intent, you cannot be found guilty. Intent can be inferred from the circumstances of the case, the relationship between the victim and the defendant, and the presence or absence of an innocent explanation for the touching.
  • Witness credibility: Most cases involving child molestation hinge on the testimony of the minor victim.  Like all witnesses, some may have a motive for fabrication. However, children are also more susceptible to manipulation and pressure to please adults than adult victims.  Children also may have more difficulty in accurately describing what happened or the identity of the perpetrator.
  • Violation of rights: Police and prosecutors take child molestation cases very seriously.  In their efforts to apprehend perpetrators, they often take shortcuts th