Child molestation is a serious offense in California, as defined under PEN 647.6 (a) (1). The crime is often prosecuted as a misdemeanor but carries hefty penalties. This offense involves a grown-up directing sexual language or behavior towards a child. The law does not require the child to give consent to the act for it to be unlawful. A person accused of this offense doesn’t have to engage in sexual intercourse with the child. A conviction on these charges can drastically change your life with no possibility of turning it around. If these allegations are brought against you, do not take them lightly and think you can fight them alone. Find a Defense lawyer at The Los Angeles Criminal Defense Attorney to help you fight these allegations and avoid wrongful convictions.
What Constitutes Child Molestation
The state of California has several laws that talk about child molestation. If you are accused of this offense, you will likely face multiple charges based on what is alleged to have happened. Some of the charges you would face include:
- Lewd deeds with a child
- Molesting or annoying a child
- Engaging in unlawful sexual intercourse with a child
Molesting or annoying a child is broad and applies in most sexually charged circumstances with a child. With this law, even when a defendant did not have physical contact with the child, they can be prosecuted for the offense.
Molesting or annoying a minor is legally defined as:
- Any type of behavior
- Motivated by one’s sexual interest in a minor
- One that can disturb, irritate, or be seen by a child.
Based on this definition, multiple situations can qualify as molestation or annoying of a child in California. These include:
- Touching the genital area of a child
- Being naked or masturbating in the presence of a child
- Touching your private or intimate parts even when dressed in the presence of a child
- Exposing a minor to any type of pornography
- A seemingly innocent touch or hug that is sexually motivated
- Talking in a foul language or saying sexually provocative things to a child
As earlier stated, molesting or annoying a minor refers to when an adult speaks or behaves in a sexually motivated manner towards a child irrespective of consent from the child. The offense of molesting or annoying a child can also be found under PEN 647.6 (a) (2). However, under this statute, a defendant is charged when they direct the sexual behavior or language towards an undercover officer.
The law prohibits sexual engagement with a minor below the age of 18. It is illegal for a person to have unnatural or abnormal sexual interests towards a minor. According to the law, if you enter a house to annoy or engage in sexual behavior with a minor, you will face misdemeanor charges of child molestation.
Some of the actions or behaviors that are termed as molesting or annoying a minor are:
- Making a video of a minor while using the bathroom or showering
- Sending messages through the phone or social media platform with sexual information to a child
- Sexually touching a child inside a house with their permission
- Using obscene language abnormally when talking to a minor either through the phone, through another person or directly. The other person must have instructions to deliver the message to the underage
- Kissing a minor irrespective of their permission
- Touching the butt of a child without their consent
Proving Annoying or Molesting a Child
When faced with these allegations, for a conviction to result, the prosecutor must show various elements of the offense as accurate. These factors or aspects include:
- The defendant engaged in behavior directed at a child
- Under normal circumstances, a reasonable person would be offended, injured, disturbed by the offensive sexual behavior
- Unnatural or abnormal sexual desires drove the defendant's conduct in the minor
- When the defendant engaged in this behavior, the child was 18 years or below
Penalties for Child Molestation
If misdemeanor charges are brought against you for this offense, a conviction can result in severe penalties. If it is your first offense in annoying or molesting a child, you will receive misdemeanor penalties. A conviction will lead to a county jail sentence lasting a maximum of a year or paying a fine not exceeding $5,000.
If the defendant has been convicted of a sexual offense before, instead of facing misdemeanor charges for annoying or molesting a minor, the charges will become a felony. Other possible penalties include:
- Serving both jail and probation time
- Serving felony probation only where a probation officer will be allocated to you
- Summary probation with no jail time. However, the probation may require the defendant to perform community service, attend therapy or participate in a work program
- The defendant may be required to register as a sex offender. When in California, this may be for the rest of the defendant’s life. The defendant is also expected to update their registration with the local police every year. If a defendant fails to register and annually report with law enforcement in their area, they will face criminal charges for this.
If the defendant faces felony charges for this offense, a conviction will result in state imprisonment as one of the punishments.
When a defendant is sentenced to felony probation for the offense of or molesting annoying a minor, various probation conditions must be adhered to. These are:
- The defendant must visit their probation officer as is indicated
- The defendant must not commit any other unlawful offense
- The defendant will be ordered to attend therapy for sexual addiction
- The defendant will be expected to complete periodic drug testing
- The defendant must be willing to have their homes or themselves searched at any time
- The defendant may be ordered to community service
When these conditions are met, the defendant will be free of their probation service once the period expires. However, if a defendant does not keep any of the probation conditions, the judge can revoke the probation, and instead, sentence the defendant to jail time.
What to do if you are Under Investigations for Annoying and Molesting a Minor
If you are being investigated for this, the best thing to do is not to say anything to the police. Always remember whatever you may say no matter how innocent it may appear can be used as evidence against you. Even when the officers seem friendly and understanding, resist from discussing the case with them and instead get a criminal lawyer to guide you.
When police are questioning you about the incidence, most of the time, they believe you did it already. The officers will question you to see if you can give them a reason to arrest you or to use it against you. When they are interviewing you, they may not threaten you with arrest, but that is their aim. When they ask you any questions, tell them you need to consult with your lawyer. Do not allow them to trick you by asking you why you need a lawyer if you are innocent.
If you have already spoken to the police, you can still salvage the situation. Speak to your lawyer and let him or her know everything you told the police. If your lawyer finds your statements incriminating, he or she may have strategies to suppress them from being used as evidence.
Legal Defenses for Annoying or Molesting a Child Under 18
As earlier stated, these charges carry severe penalties, with one of them being that of a registered sex offender all your life. Because of this, you need the services of a criminal lawyer to fight against these allegations. Some of the commonly used strategies in the defense against these allegations include:
The Defendant had no Sexual Intentions
Sometimes what happens between an adult and a child can be misunderstood by those around or even the child. A defendant may have touched a minor by mistake, or when hugging, he brushes against the breasts of a minor. This can be misinterpreted when seen by another person. The prosecution must prove beyond doubt that the defendant had sexual intentions when they accidentally brushed against the minor’s breasts.
It was an Accident
If a grown-up was alone in the house naked or was masturbating, a child may walk into the house and find them in that situation. If this is what happened, this becomes a valid defense.
There are times when a person may be mistaken with another, maybe because they wore similar clothes or are identical in their looks. Your lawyer can use this defense against the allegations and task the prosecution with proving that you are the one that committed the offense.
These allegations do not require there to be physical evidence of the offense, such as injuries or sexual intercourse. As a result, many people have been falsely accused of the crime. A person can falsely accuse the other of the offense to get back at them or if they have a grudge against them. In a custody battle, a mother can falsely accuse the child’s father of molesting a minor. If the charges are brought up against the father, the prosecution must prove that the father molested the child as the lawyer defends him.
No Sufficient Evidence
Someone can be accused of the offense, but the prosecution lacks sufficient evidence to convict them. These allegations require one to have adequate evidence and not just hearsay. If photos or videos show the defendant molesting a minor, it will be introduced as evidence. However, where substantial evidence lacks, the defendant may challenge the prosecutor’s case and get the charges against them dropped.
The Defendant’s Civil Rights were Violated
If the police coerced the defendant into confessing the crime, he or she never committed, this could be said to be police misconduct. The defendant can argue that they denied him the right to a lawyer until he confessed to the offense or other forms of threats were used. If the court accepts this defense, the evidence in terms of the defendant’s confession will be thrown out.
Questioning the Accuser’s Credibility
Aside from the defendant confessing, allegations of this offense are normally pegged on the accuser’s credibility. Equally, they are also based on the reliability of other witnesses. A lawyer in defending their client will subpoena the records of the accuser that may include medical reports of counseling records. The social media information on the accused, emails, among others, will also be asked for.
A lawyer will also interview the school mates of the accuser, their friends, and their family. Also, a lawyer will run a thorough background check on the accuser and all the witnesses. This is important to show the character of the accuser. And if he or she has accused others of the same crime.
A lawyer will also bring evidence in supporting the character of the defendant. He will have his or her colleagues, friends and family testify on their behalf. This is important to show the defendant is of good moral standing and could not commit the offenses he or she is being accused of.
Private Polygraph Tests
These are tests ideally carried out to determine if a person is lying. A former police officer or FBI agent who has credibility can carry out the polygraph test. A lawyer can organize for their clients to go through a test to show that they are telling the truth. If the defendant passes the test, the results can be shared with the prosecutor to persuade them to drop the case. Although the results from a polygraph are inadmissible in court, they can, however, be used to convince the prosecutor to dismiss the case.
What makes PEN 647.6 Violations become Felony Violations?
PEN 647.6 can also be prosecuted as felony offenses with the penalties, as discussed earlier. If a person is accused for the second time or any other subsequent time for this offense, they will face felony charges instead. A felony conviction will carry a state prison sentence of three years.
Additionally, if a defendant has a prior in any of the following offenses, a charge of annoying or molesting a child will be prosecuted as a felony. These priors are of:
- A previous conviction for raping a minor below 16 PEN 261
- A sentence on continuous sexual abuse of a minor PEN 288.5
- A conviction for having lewd acts with a minor PEN 288 and
- A sentence on child pornography offense PEN 311.4
A defendant with any of the above convictions in their record as a felony, when convicted of PEN 647.6 violations, he or she will be sentenced to 2, 4, or 6 years state imprisonment.
The Differences between Sex crimes in California and Annoying or Molesting a Child
The offense of annoying or molesting a child differs from other California sex crimes. The differences exist in:
- For PEN 647.6 violations, the defendant need not have touched the victim
- The defendant in PEN 647.6 does not have to harbor an intent of seducing the child
These and other elements distinguish this offense from other sex offenses involving children in California. Some of these related offenses are:
1. The Voyeurism of a Child PEN 647 (j)
This is also commonly referred to as peeping tom. A person is accused of violating PEN 647 (j) when they spy or make recordings of another person to invade their privacy. Unlike the offense of annoying or molesting a minor, violations of PEN 647 (j) apply to behavior not supposed to be seen by a minor.
Violations of this law are prosecuted as a misdemeanor. If the victim of the offense is a minor, the penalties received by the defendant are:
- County jail time not exceeding a year
- Paying a fine not in excess of $2,000
2. PEN 288.2 – Sending Obscene Material intended to Seduce an Underage
A person’s sexual desires drive violations of this law. For a person to be found guilty of this offense, there must be an intent by the defendant to seduce the minor. For this, a defendant is required to share pornographic materials or any other sexually harmful materials with a minor.
The prosecutor must, however, prove various factors of the crime for one to be convicted. These elements include:
- The defendant knowingly shared, exhibited or sent obscene materials to a minor
- The defendant was aware they were sharing the contents with a minor
- The defendant had the intention of arousing lust or sexual desire in the minor
- The defendant specifically wanted to entice the child to engage in the act of sex that would involve physical contact between the defendant and the minor
Penalties for Sending Harmful of Obscene Materials to a Child to Seduce them
Violations of PEN 288.2 can be prosecuted as either a misdemeanor or felony offense. The prosecutor looks at the facts of the crime and the criminal background of the perpetrator. This is essential before deciding on how to pursue the charges. If the defendant has a criminal record, a violation of PEN 288.2 is prosecuted as a felony.
A misdemeanor conviction carries the following penalties:
- The defendant will be sentenced to informal or summary probation
- The defendant can be sentenced to the county jail for not more than six months
- The defendant can be charged a fine not exceeding $1,000 alongside the jail sentence or instead of it
If a defendant is prosecuted and convicted on felony offenses, the penalties are steeper. The conviction carries the following penalties:
- The defendant can be sentenced to formal or felony probation
- The defendant can face state imprisonment lasting sixteen months, two or three years
- The defendant can be charged a cash fine of $10,000 alongside the jail time or instead of it
- The defendant must register for life as a sex offender
Additionally, if the materials were sent through the internet, it does not matter if you get convicted of the offense as a felony or misdemeanor, your computer will be confiscated.
3. PEN 288.3 – Contacting an Underage to Commit an Offense
According to PEN 288.3, a defendant can get in touch with a child to commit one of the following felonies:
- To kidnap them for ransom
- To rape them for his sexual gratification
- To perform lewd acts with them
- To create child pornography with them
When a person is accused of violating PEN 288.3, it does not mean that you must have committed one of the felonies listed above. However, by contacting or trying to get in touch with a child intending to commit any of the above offenses, among others will get you convicted.
Penalties for PEN 288.3 Violations
When you are charged with the offense of contacting a child to commit a felony, the penalties will be as if you committed the crime. For instance, if one is accused of getting in touch with a minor below 14 to engage in lewd acts, the offense is a felony. The penalties for it would be state imprisonment for three, six, or eight years in addition to or instead of a fine not exceeding $10,000. If one is a repeat offender, they will be sentenced to five years more of state imprisonment.
Additionally, irrespective of the underlying offense, if one is convicted of getting in touch with a minor to commit these felonies, they must be registered as a sex offender in California.
Possible Defenses for PEN 288.3 Violations
A person convicted of these violations faces devastating penalties even when the behavior of the defendant harmed no one. Most of these cases are usually when an undercover officer poses as a child to arrest sexual predators. When facing these allegations, getting a criminal defense lawyer will help you in formulating effective defenses for your case. Some of the arguments your lawyer can use include:
- You never had any intention of committing a felony with or against the child
- You had assumed the alleged victim was an adult not a minor
- You were unlawfully entrapped into committing the offense.
Find a Criminal Lawyer Near Me
Sexual crimes against children are some of the crimes that carry severe penalties in California. The state must protect minors from sexual predators and maintain their innocence. Allegations for this offense can result in devastating consequences for the defendant if convicted. It is crucial to fight these allegations to get a favorable sentence or avoid wrongful convictions. For your defense, get in touch with the lawyers at The Los Angeles Criminal Defense Attorney, and let them help you with your case. Call us at 310-564-2605, and we will make an appointment to discuss your case.