What Happened to Penal Code 288? Changes and Legal Updates

California Penal Code §288(a) – Lewd Acts on a Child

According to KLO, California Penal Code §288(a) makes it illegal to commit lewd or lascivious acts with a minor under the age of 14 [1]. These acts are considered illegal if they are intended to arouse or appeal to the sexual desires of either the defendant or the child, although actual arousal is not required for a conviction.

Conviction under §288(a) can result in a prison sentence of up to eight years, payment of a fine of up to $10,000, or both imprisonment and a fine, and an additional fine of up to $10,000, which must be paid into a victim’s relief fund. You’ll also be required to register as a Sex Offender for the rest of your life

What Does California Penal Code §288(a) Prohibit?

To be found guilty under CPC §288(a) for Lewd Acts on a Child, the prosecution must prove:

• You touched a child’s body or caused the child to touch either their body, your body, or someone else’s body.
• The touching occurred on bare skin or through clothing.
• The touching was done for sexual purposes.
• The child was under 14 years old.

Key Elements of Lewd Acts on a Child Under §288(a)

For a conviction under CPC §288(a), the prosecution must establish beyond a reasonable doubt that:

• You willfully engaged in the act.
• You touched the child’s body on bare skin or through clothing, or you caused the child to touch themselves, you, or another person.
• The intent behind the touching was to arouse, appeal to, or gratify sexual desires.
• The child was under 14 years old at the time of the act.

Note: Even minors under 14 can be convicted under §288(a) if there is clear evidence of their knowledge of wrongfulness and intent to arouse sexual desires. While mistake of age is not a valid defense under this section, it can be used in cases involving attempted lewd acts. Each qualifying act under §288 can lead to separate charges.

Key Elements for a Penal Code 288 PC Conviction

According to KL, to secure a conviction under California Penal Code 288 for lewd and lascivious acts with a minor, the prosecution must prove every element of the crime beyond a reasonable doubt [2]. This typically involves gathering witness statements, law enforcement reports, physical evidence, DNA, and other forensic evidence.

To be convicted under PC 288, the prosecution must demonstrate:

• You willfully and lewdly touched a minor’s body or caused the minor to touch their own body, your body, or someone else’s.
• The act was committed with the intent to arouse or gratify your own or the minor’s sexual desires.
• The critical aspect of a PC 288 case is proving that your actions were driven by a specific intent to achieve sexual arousal or gratification, regardless of whether the touching occurred over clothing or on bare skin.

Penalties for Violating Penal Code 288 – Lewd Acts with a Minor

A violation of Penal Code 288 is a “wobbler” offense, meaning it can be charged as either a misdemeanor or a felony, depending on the circumstances.

Misdemeanor Conviction Penalties:

• Up to one year in county jail.
• A fine of up to $1,000.

Felony Conviction Penalties:

• One, two, or three years in California state prison.
• A fine of up to $10,000.

If the minor involved is under 14 years old, the offense is classified as a straight felony, which cannot be reduced to a misdemeanor. The penalties include:

• Three, six, or eight years in California state prison.

Even minimal physical contact, such as touching the private areas, buttocks, or breasts, can result in these severe penalties. More aggravated conduct, including oral copulation or penetration, leads to harsher consequences.

If force, threats, or violence were used to carry out the lewd acts, the penalties increase to:

• Five, eight, or ten years in California state prison.
• A fine of up to $10,000.

Enhanced penalties apply if the minor is a dependent for whom the defendant was responsible as a caretaker. Additionally, anyone convicted under Penal Code 288(b)(1) is ineligible for probation and must serve time in state prison.

Effective Defenses Against Penal Code 288 Charges

According to SCLG, when facing charges under California Penal Code 288, several defenses have proven successful in court [3]:

1. The Child is Lying
A key aspect of many cases is the credibility of the child, especially when there is no confession or physical evidence. A seasoned California sex crimes defense attorney may:

• Subpoena the child’s school, counseling, and medical records, as well as their emails and social media accounts.
• Interview the child’s family, friends, schoolmates, and online contacts.
• Conduct a thorough background investigation of the accuser and any alleged witnesses.

2. Mistaken Identity
In some cases, a child may have been inappropriately touched but is mistaken about the identity of the perpetrator. This is more likely when:

• The defendant was unknown to the child.
• The incident occurred in a dark or unfamiliar setting.
• The perpetrator was of a different race than the defendant.
• The child was very young.

An experienced defense team will seek evidence to challenge the child’s identification of the defendant as the perpetrator.

3. The Touching Was Accidental
Penal Code 288 requires that the touching be willful to be a crime. If the contact was accidental, it does not constitute a violation of the law.

4. No Intent to Arouse
Penal Code 288 prohibits acts committed with the intent to sexually arouse either the defendant or the child. If there was no intent to arouse or gratify sexual desires, the act does not qualify as child molestation.

5. The Minor Does Not Meet the Age Criteria
California Penal Code 288 covers two types of child molestation:

• Engaging in a lewd act with a child under 14.
• Engaging in a lewd act with a minor who is 14 or 15 and at least 10 years younger than the defendant.

A defendant cannot be guilty under PC 288 if:

• The minor is 14 or 15 and less than 10 years younger than the defendant.
• The minor is over 15.

However, the defendant may still face charges under other sections, such as:

• Penal Code 261, “statutory rape.”
• Penal Code 243.4, “sexual battery.”

6. Illegal Search or Police Misconduct
In some cases, law enforcement or prosecutors may violate a defendant’s rights through:

• Illegal search and seizure.
• Coerced confessions.
• Entrapment.
• Other forms of misconduct, such as false testimony or planted evidence.

When evidence is obtained unlawfully, a skilled defense attorney can often have it excluded from the case.

7. Legal Insanity
A defendant may claim legal insanity if they can prove they:

• Did not understand the nature of their actions.
• Did not know that what they were doing was morally wrong.

While this defense can be challenging, expert witnesses may be used to support the claim that the defendant’s actions were beyond their control.

8. Intoxication
Intoxication can be a defense if it can be shown that the defendant was too impaired to form the intent to gratify sexual desire. This defense is stronger if the intoxication was involuntary, such as being drugged without their knowledge. Juries may be more sympathetic in cases of involuntary intoxication.

Related Articles:

• Can Sex Offenders Get a Passport?
• Can a Minor be a Sex Offender?
• Indecent Exposure Definition

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References:
1. https://www.kannlawoffice.com/lewd-act-on-a-child
2. https://www.keglawyers.com/lewd-acts-with-a-minor-penal-code-288
3. https://www.shouselaw.com/ca/defense/penal-code/288/