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.