More California Lewd or Lascivious Act with a Child – Penal Code 288 information

• Lewd or Lascivious Act with a Child – Penal Code 288
  • Lewd or Lascivious Act with a Child – Defenses CA PC 288
  • Lewd or Lascivious Act with a Child – Defenses
  • Lewd or Lascivious Acts on Minor Prosecution – Penal Code 288(a)
  • Lewd or Lascivious Acts on Minor – Prosecution – California Penal Code 288(b)(1)
  • Lewd or Lascivious Acts on Minor – Prosecution -Penal Code 288(c)(1)
  • Lewd or Lascivious Act with a Child – Sentencing & Punishment – Penal Code Section 288
  • Lewd or Lascivious Act with a Child – FAQs– California Penal Code Section 288

Lewd or Lascivious Act with a Child – FAQs– California Penal Code Section 288

What if I was not aroused by the touching, can I use this as a defense?

Actual arousal is not required for this crime to be committed.  You cannot use this as a defense.  See People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59]. The crime is committed if your intention in committing the touching was for sexual arousal, regardless of whether you were actually aroused.  However, it is a defense if the touching occurred if your intention was for any reason other than sexual arousal.

What can an attorney reduce my charges to?

An experienced sex crimes attorney would first try to find grounds to dismiss all charges against you.  If there are no grounds for dismissal, an attorney can negotiate with the prosecution for a reduced charge.  Common reduced charges that we were successful in obtaining included simple assault (California Penal Code Section 240) and simple battery (California Penal Code Section 242).

If I was charged with committing a lewd or lascivious act on a child by duress, under California Penal Code Section 288, how can the prosecution prove duress was used?

The prosecution can prove that duress was used by showing the jury the totality of circumstances.  Relevant factors include, but not limited to, threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.  The victim testifying that the defendant did not use force or threats does not require a finding of no duress.  The jury can consider the victim’s age and relationship to the defendant in looking at the totality of circumstances.  See People v. Cochran, supra, 103 Cal.App.4th at p. 14.

Can I be charged with multiple counts if the touching of the minor only occurred once?

Each individual act that meets the requirements of section 288 can result in a new and separate violation.  For example, if a defendant fondles one area of a victim’s body with the intent for sexual arousal and then moves on to fondle a different area, one offense has ceased and another has begun. There is no requirement that the two be separated by a hiatus or period of reflection.  See People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [121 Cal.Rptr.2d 426].

What if I made an honest mistake about the minor’s age?

This is not a defense and cannot be used to dismiss the charges.  The court has held that a defendant charged with a lewd act on a child under Penal Code section 288(a) is not entitled to a mistake of fact instruction regarding the victim’s age.  See People v. Olsen (1984) 36 Cal.3d 638, 647.