Have You Been Charged With A California Sex Crime?

Sexual Battery

Sexual battery, or sexual assault, is prosecuted under Penal Code § 243.4.

The prosecutor will have to prove the following elements:

• The defendant touched an intimate part of the victim
• The defendant’s act was against the victim’s will
• The act was done with the specific intent to cause sexual arousal or abuse

This offense is a wobbler.  If charged as a misdemeanor, the maximum sentences is six months in county jail.  If charged as a felony, the penalty is two, three, or four years in state prison.

Regardless of whether it is a misdemeanor or felony, a conviction for sexual battery results in lifetime sex offender registration.

Under federal immigration law, the offense is a crime involving moral turpitude and may be an aggravated felony if a sentence longer than one year is imposed.

Lewd Conduct

Penal Code § 647(a) prohibits both soliciting and engaging in lewd conduct, which is defined as touching the genitals, buttocks, or breast (females only) for the purpose of sexual gratification or annoying or offending another person.  

The prosecutor will have to prove the following elements:

• The defendant engaged in, or solicited another to engage in, lewd conduct in a public place or a private place that is open or exposed to public view

Penal Code § 647(a) is a misdemeanor, with a punishment of up to 180 days in county jail.  By itself, a lewd conduct conviction does not require registration as a sex offender.

Under federal immigration law, this offense is a crime involving moral turpitude.  

Indecent Exposure

Under Penal Code § 314, the willful exposure of genitals to another person, motivated by a desire for sexual gratification or offending the other person constitutes the crime of indecent exposure.  

The prosecutor must prove the following elements:

• The defendant willfully and lewdly exposed his or her genitals in a public place or a place where others were present
• The defendant’s act offended or annoyed other persons

A first offense is a misdemeanor, punished by up to 180 days in county jail, and a second offense is a felony, punished by sixteen months, two years, or three years in state prison sentence. Any conviction for indecent exposure results in a lifetime registration as a California sex offender.

Under federal immigration law, this offense is a crime involving moral turpitude.

Child Pornography

Penal Code § 311 prohibits the distribution, transportation, duplication, printing, exchange, advertisement, production, and possession of child pornography. Additionally, it prohibits hiring or convincing minors to participate in the production of child pornography.  

For possession of child pornography under Penal Code § 311.11(a), the prosecutor must prove the following elements:

• The defendant knowingly possessed or controlled any matter, representation, data, or image that contained obscene matter involving a person under age 18
• The defendant knew that the matter depicted a person under age 18 personally engaged in or simulating sexual conduct

Possession of child pornography is a wobbler . If charged as a misdemeanor, the offense is punished by up to one year in county jail.  If charged as a felony, the offense is punished by sixteen months, two years, or three years in county jail.

All child pornography convictions result in lifetime sex offender registration.

Under federal immigration law, the offense is a crime involving moral turpitude.

Penal Code § 290

One of the most severe penalties for sex crimes is sex offender registration.  Penal Code § 290 requires that defendants convicted of certain sex crimes register in the sex offender registry.  The penalties for failure to register reflect the seriousness of the underlying conviction: if the registerable offense was a misdemeanor, failure to register will likewise be a misdemeanor; if the registerable offense was a felony, failure to register will be a felony.  Section 290 registration is also required for individuals who were convicted of registerable offenses in other jurisdictions, such as another state or federal court.

Senate Bill 384

Senate Bill 384 changed Penal Code § 290 to allow the registration requirements for certain offense to terminate after either ten or twenty years, depending on the conviction requiring registration.

Starting in July 2021, individuals who are required to register pursuant to Penal Code § 290 and have registered continuously for either ten or twenty years are eligible to petition the court to terminate their registration requirements.  Starting in January 2021, the Department of Justice will notify registrants if they are eligible to petition after ten or twenty years, based on the offense of which they were convicted. Some offenses, however, will continue to require lifetime registration.

Federal Sex Crimes

The United States Attorney’s Office also prosecutes sex crimes at the federal level.  Many of these crimes are similar to or overlap their state law counterparts.

Sex Trafficking of Children

18 U.S.C. § 1591 prohibits the trafficking of children for sexual purposes.

The prosecutor must prove the following elements:

• The defendant knowingly either recruited, enticed, harbored, transported, provided, obtained, advertised, or solicited a person to engage in a commercial sex act
• The defendant knew that the victim was a minor and would be used in a commercial sex act, or that force, threats, or fraud would be used to cause the victim to engage in a commercial sex act
• The defendant’s act either affected interstate or foreign commerce or otherwise falls into federal jurisdiction

This offense has a statutory mandatory minimum of fifteen years.

Sexual Abuse

Sexual abuse crimes are prosecuted  in federal court under 18 U.S.C. § 2242.

The prosecutor must prove the following elements:

• The defendant was in the maritime or territorial jurisdiction of the federal government, or a federal prison
• The defendant caused another person to engage in a sexual act
• The defendant did so by threatening the victim or placing the victim in fear

OR

• The defendant engaged in a sexual act with another person who was incapable of understanding the nature of the conduct or physically incapable of declining to participate of communicate their unwillingness

Sexual Exploitation of Children

18 U.S.C. § 2251 prohibits the sexual abuse of children and covers a broad range of conduct.

The prosecutor must prove the following elements:

• The defendant employed, used, persuaded, or coerced the victim to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct
• The defendant knew, or should have known, the visual depiction would be mailed or transported across state lines or in foreign commerce
• The victim was a minor

These offenses will be sentenced according to the United States Sentencing Guidelines, as well as any statutory mandatory minimums and maximums.  For more information on the Sentencing Guidelines and federal cases, please see our Federal Crimes page.

Defenses

• Consent: With the exception of sex crimes involving minors, consent is a defense to most sex crimes.
• Mistaken identity: Eyewitnesses and victims can make mistaken identifications after traumatic incidents, especially if they are subjected to suggestive law enforcement techniques.  A skilled criminal defense attorney can reveal the improper techniques used by law enforcement to obtain an identification, as well as present forensic and other exculpatory evidence.
• False accusations:  Many sex crimes revolve around the question of consent.  Because of this, the cases are often “he-said, she said” cases in which the conflicting testimony of the victim and the defendant is the main evidence.  Unfortunately, these cases can arise from false accusations. A criminal defense attorney can use cross-examination to reveal the inconsistencies in false testimony and reveal the biased motivation behind false accusations.

Next Steps

• Do not speak to the police.  If poli ce 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 a search.  Politely but firmly tell police that you do not consent to a search but will not interfere if they return with a search warrant.  
• Obey all protective orders.  Many sex crime cases involve Restraining Orders (issued by a court in a separate civil proceeding that may occur before, during, or after the criminal case) or Criminal Protective Orders (issued by the judge in the criminal case, usually at arraignment). These orders usually require the defendant to avoid contact with the victim and stay a certain distance away.  It is crucial to avoid violating these orders because they can result in incarceration.
• Do not contact potential witnesses.  The District Attorney or judge could view this as an attempt to pressure the victim or witness.
• Contact an experienced criminal defense attorney to represent you in your California sex crime case.  Call our office today at 877-375-8188 for a FREE case evaluation.

Resources

• California Sex Offender Registry 

• United States Sentencing Guidelines