The state of California under PEN 288 makes it illegal for a person to be involved in lascivious or lewd acts with a child. These are the deeds that are sexual and indecent. This behavior falls under the broader category of child molestation. An offense in child molestation can negatively impact your personal and professional life and can lead to lifetime consequences. If one is convicted of these allegations, the penalties can be severe. If you or a loved one is facing charges of lewd acts with a child, the lawyers at The Los Angeles Criminal Defense Attorney will help you come up with sufficient defense. Do not take these allegations lightly even when you believe you have been accused falsely. With an experienced lawyer, one can avoid wrongful conviction of this crime.
Understanding PEN 288 – Lewd Acts with a Minor
The definition of lascivious or lewd acts with a child is found under PEN 288. This law has multiple subsections that describe various indecent sexual acts with children of multiple ages. For instance, laws against being engaged in obscene or lewd acts with a child under 14 are found under PEN 288(a). When one is accused of this offense, a prosecutor will need to get a conviction by proving the elements of the case below:
- That the defendant willfully and indecently touched a minor’s body or parts of their body or intentionally asked the minor to touch them or another person in an indecent sexual manner
- That the defendant in committing this act had the intention to arouse, appeal to, or gratify their lust, sexual desires, sexual fantasy, or passions with a child
- When the defendant committed these acts, the minor was 14 or below
Another law that forbids lewd deeds with a child is that found under PEN 288(b). Although the offense is like that of PEN 288(a), the difference is in how the crime was carried out. When a person forces, uses violence, or instills fear to engage a child in indecent or lewd acts, they will be prosecuted according to PEN 288(b).
Using force, fear, or violence to get a minor to engage in lewd behavior with you will earn you harsher penalties than those of a standard offense of lewd acts with a child.
The law describing the offense of engaging in lascivious or lewd acts with a minor that is aged 14 years or 15 years is found under PEN 288(c). If the defendant committed the crime and was ten years older than the child, then the offense is a wobbler and carries lighter penalties than those of PEN 288(a).
Engaging in a consistent sexual abuse against a minor is found under PEN 288.5. This offense is like that of engaging in lascivious or lewd acts with a minor. However, in this case, the person engages in multiple incidences of lewd acts with a minor. If a person engaged in these acts at least three times with the child in three months, this offense will be prosecuted under PEN 288.5.
For the prosecution to get a conviction against a defendant for this offense, they must prove that the defendant shared home or had a way to access the minor continuously. Additionally, the alleged victim must have been 14 years or below at the time of the offense.
Penalties for Lewd Acts with a Minor
If one is convicted of engaging in lascivious or lewd acts with a child, the possible penalties are harsh. The circumstances of the case or offense often determine the kind of sentencing a defendant may receive. The particular code section where the crime falls also defines the penalties against the defendant. Here, we will discuss the various common sentences for the different offenses under PEN 288 in California.
1. PEN 288(a) Penalties
If you are accused of engaging in lascivious or lewd acts with a minor under 14, your charges will be prosecuted as a felony. A PEN 288(a) felony conviction carries not more than eight years of state imprisonment. Additionally, the defendant can be ordered to pay a fine, not exceeding $10,000. Sometimes, a judge can sentence the defendant to either the fine or jail time instead of both.
2. PEN 288(b) Penalties
As earlier stated, a person can use force, fear, or violence to get a child to engage in lascivious or lewd acts with them or others. This offense carries steeper penalties and is prosecuted as a felony. If a defendant is convicted of this offense, they face possible state incarceration of five, eight, or ten years. The defendant can also be ordered to pay a fine, not exceeding $10,000.
When one is convicted of this crime, he or she will not be qualified for probation and must fulfill a prison sentence.
3. PEN 288(c) Penalties
If a defendant is accused of committing lascivious or lewd acts with a minor that is fourteen or fifteen and at the time the defendant was ten years older, he or she will be convicted under PEN 288(c). This is a wobbler offense in California. The defendant can be prosecuted on felony or misdemeanor charges. The prosecutor evaluates the circumstances surrounding the case defines and the criminal background of the defendant. This is to decide how to prosecute the offense.
If a defendant is convicted of misdemeanor charges, they face county imprisonment not exceeding a year. On the other hand, if the offense is prosecuted as a felony, a conviction will result in a state prison sentence of not more than three years.
4. PEN 288.5 Penalties
A PEN 288.5 violation is one of the most heinous child molestation offenses in California. When a person is accused of the crime of continuously engaging in lascivious or lewd acts with a minor, they will face felony charges. A conviction on this offense will lead to state imprisonment for six, twelve, or sixteen years.
Registration as a Sex Offender
Irrespective of the actual offense a person is convicted of committing under PEN 288, California requires any person convicted of a sexual crime against a minor to register as a sex offender. This is by far the most severe consequence of committing this offense as one is required to remain registered for life.
Lifetime registration as a sex offender when convicted is required, and a failure to register can lead to criminal charges against the defendant. If one is convicted of failing to register as a sex offender, they can receive a prison sentence lasting not more than three years, according to PEN 290.018(b).
Statutes of Limitations for PEN 288
Most criminal offenses carry a statute of limitations in California. This means a person accusing another of engaging in lewd acts with a minor must do so within a given period. If this period expires, the alleged victim cannot bring up the charges against the person. In establishing the limit by which a person can bring up criminal allegations against a person, it was believed to be unfair to charge a person with a crime that supposedly occurred many years before. The accused, under such circumstances, may not be able to defend themselves against the crimes sufficiently.
There are multiple reasons why a defendant in a case may not sufficiently defend themselves if charged many years later. Some of these reasons are:
- Crucial witnesses may not be traceable or could be dead
- Over the years, the physical evidence required by the defendant to fight against the allegations may be inaccessible or lost
- Recalling incidents that happened many years ago may be a challenge for the defendant. This would make the defense of alibi hard to support.
With regard to PEN 288, the statute of limitations is complex. However, the first part of it is straightforward and easy to understand. The law states that for one to bring up allegations of child molestation, they must file them in ten years from when they turn 18. This means that the window to file charges against a person for this offense expires once the alleged victim becomes 28.
Despite this, there is a possible way to file the charges even after the given period has expired. The law permits a person to file the charges in a year from the time the police were notified. This move is irrespective of the time when the crime is said to have happened. However, the exception to the time limit is not guaranteed. For the exemption to be acceptable, every element below must be true:
- The offense needs to have involved significant or substantial sexual behavior or act
- In supporting the claims by the alleged victim, there must be an existence of independent evidence
Substantial sexual behavior or conduct in California is described as sexual behavior or deed with a child involving anal or vaginal penetration or even oral sex. Also, if the alleged victim was over 21 when they reported the crime, they must produce convincing and clear independent evidence against the alleged perpetrator. This is necessary for showing that the allegations are valid.
This law, however, applies to offenses that happened before January 2017, and the statute of limitations was in effect. This is so because a law eliminating the statute of limitations for significant sex crimes like lascivious or lewd acts was passed. This means that any sex crime that happened after January 2017 can be prosecuted at any time without any limitations.
Legal Defenses against PEN 288 Allegations
As discussed earlier, the penalties and consequences of a conviction on these allegations are severe. This makes it essential for an alleged perpetrator to engage an experienced criminal defense lawyer to formulate strategies to defend them against the charges.
On getting a lawyer, it is advisable to be completely honest about the allegations and try to be as vivid as possible with the details. This will help your attorney come up with the best possible defense strategies that will help with your case. Some of the defenses your lawyer can use to fight these allegations may include:
There was no Touching between the Defendant and the Minor
If the defendant did not engage in any form of touching with the victim or did not ask them to touch them, the defendant could not be found guilty of the offense. With this defense, a lawyer will be arguing that the victim is confused or lying about the crime. In doing so, a lawyer will ask leading questions to create doubt in the victim’s narrative and, in essence, create uncertainty in their allegations.
It was Accidental Touching
It is possible to touch a person but by accident. If this is the case, you cannot be convicted of this offense. The prosecution has the burden to prove the defendant touched the alleged victim intentionally and with sexual or indecent intent.
There was no Intention of Sexual Gratification for the Victim or the Defendant
One of the critical elements in a PEN 288 case is proving that the defendant touched the alleged victim for the sexual gratification of themselves or the victim. The prosecution is burdened with convincing the court that the defendant’s conduct was sexually driven, which is very difficult to prove. A skilled defense attorney can challenge the prosecutor’s theory and create doubt. If the court is convinced of the defense attorney’s argument, a conviction of the offense will not be brought against the defendant.
Alibi Defense
In bringing charges against a defendant for lewd acts, the alleged victim must state the dates and times when the alleged offense occurred. Through a lawyer, the accused can show that they were not near the alleged victim when the crime is supposed to have happened. This is possible by producing evidence that you were at a different location at the time. This can be established by providing an alibi or a person that can testify of your whereabouts at the time. Receipts from a store can also act as an alibi. For instance, if the supposed time the crime happened, you were at the grocery store, you can produce receipts to show the time and date. If you were at work or was with a friend, a colleague or a friend can testify to this.
If the court is convinced that the defendant had a solid alibi, it will be concluded that they couldn't commit the crime. The charges against the defendant can, therefore, be dismissed.
False Accusations
A person can falsely be accused of committing this offense either out of jealousy, anger, or a need to destroy the defendant’s reputation. For instance, if a couple is going through a divorce, and there is a custody battle, a mother can convince a child to bring up these allegations against their father. This can be done to deny the father custody of the kids. Or because the mother is bitter because of the divorce.
A skilled criminal defense lawyer can expertly question the alleged victim and witnesses to create doubt in their story. If it is established that the allegations are based on falsehoods, the charges against the defendant can be dropped.
Voluntary Intoxication
Voluntary intoxication can also be a valid defense for a defendant. If your lawyer can show that you were highly intoxicated, and as a result, you were not in a position to form sexual intentions, you will not be found guilty of the offense. To do this, a lawyer must show the level of intoxication mostly through the statement of a witness. If this is established, it can be concluded that even if there was a touch, it was not specifically intended to gratify the victim or defendant sexually.
Police Misconduct
Misconduct by the police can also be used as a valid defense against these charges. If a defendant faces these allegations, he or she has a right to legal representation. If the defendant requests for that and is denied, this is misconduct on the part of the police. A defendant can also be coerced to confess to the crime or threatened with consequences if they don’t. A defendant can argue that the statement they gave was under duress and was not an actual representation of the facts.
If this argument is found to be accurate, the evidence the police may have against the defendant, if not legally obtained, may not be used in court. This can affect the prosecutor’s case to a point where the allegations are dismissed.
Common Questions Asked Concerning Lewd Acts with a Minor
Generally, whether facing allegations of violating PEN 288 or not, there are various questions a defendant or a loved one can ask about this offense. Some of the common questions asked include:
Can a Person be Convicted of the Offense if the Child or Minor Permitted it?
The answer is yes. The legal age to consent in California is 18. Any person below the age of 18 is not allowed to give permission to sexual deeds legally. This means that if you are faced with allegations of violating PEN 288, you cannot use consent as your defense.
Can a Child or Minor Face a Conviction for PEN 288 Violations?
Yes, a minor can get convicted of the offense of engaging in lewd acts with another minor. However, the prosecutor must prove that the alleged minor was aware of their behavior and knew that it was wrong. The prosecutor will also be required to show that the minor accused of the offense had the intention to gratify or arouse themselves or the victim sexually. Sometimes, this can be difficult to prove, but if it is established, the minor that performed the act will be convicted.
Can a Child Lie about being Sexually Molested?
In most cases, charges of child molestation are based on the credibility of both the alleged victim and perpetrator. In many instances, both the jury and prosecutors lean towards believing the child. It is often assumed that a child cannot lie about sexual molestation. Unfortunately, false allegations of sexual offenses by children exist.
A minor can lie that a teacher sexually molested them or touched them to get back at them. A child can have a vendetta against a teacher or another grown-up when they feel they wronged them. To revenge against the alleged wrongdoing, a child can accuse an adult of engaging in lewd behavior with them.
When this happens, the accused adult must seek legal representation to fight against these allegations.
If the Alleged Victim Lied about their Age, can One Still be Convicted of the Offense?
Sometimes an alleged victim may look older than they are or may lie about their age. Earlier, we indicated that the age of consent in California is 18 years. Unfortunately, even when a defendant believed the alleged victim was of legal age, a mistake of a victim’s age cannot be used as a defense. According to PEN 288, an error of fact about the victim’s age is not a valid legal defense. This means, even if the defendant were not aware that the minor was 14, they would still be convicted of the offense.
Sentence Suspension
After a conviction, a defendant can have their sentences suspended according to PEN 288(a). Suspension eliminates typically the requirement for a defendant to spend time in prison. However, for it to happen, a reputable psychiatrist must produce a detailed report to the court about the defendant’s mental condition.
If in the report, it is concluded that the defendant is unlikely to recommit the offense, the defendant may receive probation as their sentence. Probation allows a defendant to serve some of their sentences outside of prison. Additionally, probation comes with various conditions, with one of them being prohibited from committing any criminal offense. If the terms of probation are violated, the defendant risks having it revoked and the staying of their jail sentence.
PEN 667.61(d)(7) Lewd Acts Causing Injuries
In the process of committing lewd acts with a minor, they can sustain injuries. If this happens, the perpetrator will face felony charges for causing the injuries, as found under PEN 667.61(d)(7). This is beside the charges brought against them for PEN 288 violations.
A felony conviction for this offense carries harsh penalties. The defendant can be sentenced to life imprisonment with a fine not exceeding $10,000.
According to PEN 288(i)(1), when a person directly inflicts injuries to a minor during the act, they can face life imprisonment or five years for each count they face. This is in addition to the other penalties they will be sentenced to.
Find a Los Angeles Criminal Lawyer Near Me
A conviction on lewd acts with a minor is not only embarrassing to the defendant, but it has devastating consequences that can last a lifetime. When faced with these allegations, it is best to seek a criminal attorney to fight them on your behalf. The criminal lawyers at The Los Angeles Criminal Defense Attorney are passionate about defending their clients against criminal allegations. Call us at 310-564-2605, and let us discuss your defense.
