Legal Definition and Elements of Lewd Conduct

Lewd acts refer to actions like touching your genitals or those of another person to offend another person or for sexual gratification. The court could also find you guilty for the offense is you solicit someone to engage in lewd conduct. Sometimes the prosecution chooses to charge the offense alongside indecent exposure, which mandates you to register as a sex offender for life. When facing charges for lewd conduct, consult with the Los Angeles Criminal Defense Attorney to understand the charges against you and fight them. With the help of your attorney, you can have the charges reduced to a lesser offense or prevent additional and more serious charges.

PC 647(a) defines lewd conduct as engaging or soliciting another person to engage in dissolute conduct in public or a public place. Lewd conduct laws aim at punishing offenders who engage in offensive sexual acts that go against the moral standards and appropriate behavior.

Charges for lewd acts occur when the public report people who are publicly engaging in offensive sexual acts. Some of the common lewd acts include publicly viewing pornography, fondling yourself in public, or exposing your genitalia in public.

Peeping is another form of lewd conduct covered separately in California peeping tom laws. It refers to the offense of peeping into private spaces, or areas where the victim reasonably expects privacy for sexual arousal or gratification.

The prosecution has to prove several elements of the offense beyond a reasonable doubt before you can be found guilty of the crime. The elements of the offense include:

You willfully touched your private parts or those of another person
With the intent of achieving sexual gratification or offending another person
You committed the act in a public place or one open to public view
You knew or should have known that someone else was present and would have been offended by your conduct

Private parts include genitals, buttocks, or female breasts. Public places or those open to the public include private movie booths, common hallways in a building, massage parlors, and cars parked in a public place. The prosecution could charge you for engaging in lewd acts in a private home while exposed to the public.

The court also requires that the offense will offend a third party. Therefore, you can be charged with the offense unless you can prove that:

You reasonably believed that no one would see you
You did not believe the person viewing would be offended

California punishes lewd acts in public as a misdemeanor offense with penalties such as:

A maximum jail term of six months
A fine not exceeding $1000
Misdemeanor probation

You will have to fulfill some conditions such as paying fines, counseling, taking AIDS tests, and avoiding the location while on probation.

Undercover sting operations are one of the major sources of arrests for lewd conduct in public. A decoy officer often pretends to be interested in engaging in lewd conduct. If you engage in the act, they will arrest you and charge you with a PC 647(a) violation.

In some cases, the police conduct surveillance discrete areas in public locations to arrest offenders. Most of these sting operations occur in areas such as shopping malls, public parks, and bathrooms in public places, alleys, and adult bookstores.

You could also be charged with a separate but more serious charge of lewd acts with a child or minor.

Lewd Acts with a Minor Child

California Penal Code 288 prohibits committing a lewd act with a child below 14 years with the intent of achieving sexual gratification. If you commit the offense, the court will convict you with a felony.

The penal code defines the offense as:

Any lewd act
Conducted in the body of a minor who is less than 14 years
With the intent of sexually gratifying the child, the offender or another person

Lewd acts refer to willfully touching any part of the child’s body or causing a child to touch his or her own body, the offenders, or a third party’s. This means that, even if by massaging the scalp of a child, you get sexually aroused, you are guilty of violating PC 288 (a).

If you used force, fear, or violence, then you are violating PC 288(b) (1). Force refers to any act committed aside from the touching. For example, if you pin a child down so that you can take off her clothes and touch her vagina, you are guilty of using force.

Fear implies that you make a child afraid and knowingly take advantage of that fear to commit the lewd act. Duress, on the other hand, refers to using threat, a threat of using force, danger, or retaliation to coerce the child into submitting to the offense. You can achieve duress by:

Threatening to harm the victim or an immediate person
Physically controlling the victim for example through restraining him or her
Threatening to harm the child is he or she reports the matter to another person

When determining duress and the intent with which the defendant acted, the court will examine:

The relationship between the child and the offender
The place the offense took place
The difference in size between the defendant and the victim
The age of the child
The nature of the touching
Whether there is an honest explanation for the touching

The penalties depend on the criminal history, the child's age, and the context in which the defendant accomplished the act.

If the offense does not involve the use of force or duress, the penalties will include:

Incarceration in state prison for three, six or eight years
A fine not exceeding $10,000
Felony probation with up to one year in county jail

Where the offense involved the use of force, threats, violence, or coercion, the penalties will include:

A state prison term of five, eight or ten years
A fine of up to $10,000

If the minor suffers harm, the penalties could consist of one of the following:

25 years to life in state prison
A life sentence if you personally inflict the injury to the minor
A five-year sentence enhancement for causing great bodily harm to the victim

You could be charged with lewd acts on a minor child if the victim was 14 or 15, and you were at least ten years older than the victim was. PC 288 (c) (1) punishes the offense as a wobbler. The penalties for a misdemeanor will include one year in county jail and fines. For a felony, you face a potential state prison sentence of 16 months, two or three years. The court can sentence you to formal probation with up to a year in county jail.

If you have a prior conviction for PC 288 violations, you are likely to be sentenced to 25 years to life. Also, you will have to register as a sex offender for life for any conviction of lewd acts on a minor child.

Other consequences will include:

Paying victim restitution
Loss of professional licenses depending on your profession
A strike on your criminal record

The victim can file charges of lewd acts on a child any time until the victim is forty. California is strict on punishing people who commit sex crimes against children. The investigators will often try to bring the defendant to confess to his crimes through a pretext call.

If the investigators confirm that you committed the act, they will look for potential victims whom you might have hurt. The prosecution can use such evidence to cement the case and pile up additional charges.

Legal Defenses

The law allows you to fight any charges you are facing. With the help of a sex crimes attorney, you can fight charges for lewd conduct. Some of the defenses you could use include:

1. You did Not Engage in Lewd Conduct

You must have engaged in a lewd act for you to be guilty of the offense. Therefore, the prosecution has to prove that you did commit the act.

To make this a strong defense, do not speak to the officers without an attorney, neither should you admit to committing the offense. Exercise your right to have an attorney present during questioning and to remain silent.

2. False Accusations

You might be falsely accused of committing a lewd act. False accusations are common in charges for lewd acts with a minor. The child could be intent on getting you in trouble, or an adult has coached him or her on what to say.

Hiring an attorney as soon as you are arrested gives you the best chance to fight these charges and uncover any false accusations.

The attorney will interrogate the child to determine whether there are inconsistencies or inaccuracies with the testimony.

In the case of a child, the police will investigate his or her previous behavior. If the child is known for lying, then the case might be dismissed.

The investigators will also interview the family, friends, teachers, and online contacts of the child. In some cases, the attorney will request a court order to access the social network accounts, medical, school, and counseling records of the child.

3. Insufficient Evidence

The constitution assumes you are innocent until proven guilty. The prosecution must prove your guilt by showing how your actions or words fulfill the elements of lewd conduct.

If the evidence is insufficient, such that the prosecution cannot prove your guilt beyond a reasonable doubt, then you cannot be charged with the offense.

Your defense attorney starts examining the evidence against you at the arraignment. He or she will have access to police reports as well as the prosecution’s evidence.

After gaining access to this evidence, the attorney will identify gaps and weaknesses in the evidence. For example, he or she could notice a lack of witnesses to the offense or missing links.

If your attorney challenges these weaknesses, he or she might secure a reduced or dismissed charge.

4. Mistaken Identity

A child with whom you are accused of engaging in lewd acts might be unable to identify the actual perpetrator, especially if:

The child does not know the offender
The act took place in a secluded area
The area was dark at the time of the offense
The child was very young
Differences in race between the child and the offender

Your lawyer will also examine the process used in the identification of the offender to determine whether there were errors.

5. Lack of Intent to Arouse or Cause Sexual Gratification

The prosecution must prove that you touched yourself, another person, or a child with the intent to arouse yourself, the child, or another person. However, the arresting officer or onlookers might misinterpret innocent acts of touching as those meant for sexual gratification.

For example, say you are the parent of a child, and you notice something unusual with the child’s genitalia. If you touch him or her to examine him, the act is not for sexual gratification.

Sometimes, you could be accused of lewd acts in public even if you were engaging in innocent activities such as cleaning your genitalia. When using this defense, the prosecution has the burden of proving that you intended to cause sexual arousal, gratification, or offense to another person.

6. You Believed No One Would Be Offended By the Act

When accused of lewd acts in public, the prosecution has to prove that you knew or should have reasonably known that:

Another person would be present
The person would be offended by the act

However, if you do not know that the person is offended by the act, you cannot be guilty.

7. You Were Not In A Public Place

You must have committed a lewd act in a public place for you to be guilty of a PC 647 (a) violation. A public place can include a private place, which is open to public view. However, if the place does not meet the definition of a public place, then you cannot be guilty of the offense.

8. Entrapment

As mentioned earlier, police make most arrests for lewd acts in public through undercover police stings. However, some officers can be overzealous in committing the offense that they entrap you into wrongdoing.

Entrapment can occur through fraud, malice, harassment, and flattery. In addition, if the police specifically target a person who has a history of committing lewd acts in public, the court could dismiss the charge.

The police are not supposed to set a trap targeting a particular person. For example, if a decoy officer pretends to solicit for lewd acts in a public restroom where a previous offender is known to frequent, that is entrapment.

When coming up with sting operations, the decoy officer should not target a specific individual or forcibly suggest wrongdoing. For example, if an officer loiters in or about a toilet and a guy approaches him to commit a lewd act, that would not be entrapment.

However, if the officer approaches a person and persuades him or her to engage in lewd acts, then that would amount to entrapment.

When using entrapment as a defense, you have to prove that you were not predisposed to committing the offense.

9. Police misconduct

Police can be overzealous in prosecuting offenders for lewd conduct that they engage in misconduct. Some of the common misconduct includes planting evidence, fabricated reports, and illegal searches and seizures. If you are the victim of police misconduct, you can successfully challenge the credibility of the evidence and charges against you.

Your lawyer could request a pitchess motion, which allows him or her to review the conduct of the arresting officer. If the officer has a history of misconduct, then your attorney can use this fact to back up your claim.

10. The Minor Does Not Meet the Required Age Limits

You are guilty of committing lewd acts with a minor if:

He or she is younger than 14
He or she is 14 or 15, and you are at least ten years older than the victim

However, if the victim does not fall under these age limits, then you cannot be guilty of lewd acts with a minor. In some cases, the prosecution might find a way to charge you with statutory rape or other related offenses such as sexual assault. Therefore, your attorney has to be prepared to deal with arising charges.

11. Accidental Touching

If you accidentally touch another person in a way that would appear to be a lewd act, you can use this defense. Accidental touching is an appropriate defense, especially in cases of lewd acts with a child. For example, you could accidentally touch a child during play.

Related Offenses

Some of the offenses related to lewd conduct include:

Indecent Exposure

Prosecutors often bring charges of indecent exposure alongside or instead of lewd conduct in public. California PC 314 defines indecent exposure as willfully exposing your genitals intending to arouse yourself or to offend another person.

The first conviction for indecent exposure is a misdemeanor with up to six months in county jail and a $1,000 fine. Subsequent offenses are felonies. The potential penalties include a state prison sentence of up to three years and pay up to $10,000 in fines. You will also have to register as a sex offender for at least ten years.

Lewd Acts on a Dependent Person by a Caretaker

PC 288b2 prohibits the commission of lewd acts by caretakers on a dependent person or a person aged above 65 years using force or fear. The offense includes:

Touching a dependent person
Causing a dependent to touch you
For sexual arousal or gratification
You are a caretaker

A caretaker is an owner, administrator, employee, volunteer, contractor, or operator of a care facility for dependent or senior persons. These facilities could include nursing homes, personal care homes, and assisted living facilities.

Committing a lewd act on a dependent person is a felony punishable by five, eight, or ten years in state prison. You will also have to register as a sexual offender for life.

Continuous Sexual Abuse of a Child

When you commit at least three lewd acts with a child for at least three months, you are guilty of continuously abusing a child. You will be charged with the offense if:

You live with or have access to a child aged 14 or younger
You commit a lewd act or an act of substantial sexual contact
With the intent of arousing the child, yourself or another person

Continuous sexual abuse of a child is a felony punishable by incarceration in state prison for six, twelve of sixteen years. You will also earn a strike on your record and have to register as a sex offender for life.

Soliciting lewd conduct

If you loiter around a public toilet to engage or solicit lewd conduct, you are guilty of violating the law. You could also be guilty of soliciting lewd conduct with a child if:

You send a child any harmful matter with the intent to seduce him or her PC 288.2. The offense is a wobbler in California.
Contacting a minor to commit a lewd act which is a felony in California with a state prison sentence of up to three years
Organizing a meeting with a child to commit a lewd act is an offense covered under PC 288.4. The offense is a wobbler depending on whether the child shows up or not. If he or she shows up, you will be charged with a felony and get a sentence of up to three years in state prison.

Find a Sex Crimes Defense Attorney Near Me

Los Angeles is an area commonly targeted for undercover sting operations to arrest offenders for lewd acts. You could be arrested due to such an operation, even if the officers misinterpret your intentions. Such an arrest can be embarrassing and could potentially affect your employment and professional licensing. You should contact a sex crime defense attorney such as the Los Angeles Criminal Defense Attorney as soon as you are arrested. Promptly hiring an attorney allows you some peace of mind and better chances at developing a stronger defense. In some cases, your attorney can negotiate, so the prosecution does not file charges. Contact us at 310-564-2605 for a free consultation if you are facing charges for lewd conduct.

Lewd Conduct