Lewd or Lascivious Act: By Force or Fear – California Penal Code Section 288(b)(1)

To prove that the defendant is guilty of committing a lewd or lascivious act on a child under the age of 14 years by use of force or fear, the prosecution must prove that:

<Alternative 1A—defendant touched child>
1.    The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing;
OR
<Alternative 1B—child touched defendant>
1.    The defendant willfully caused a child to touch (his/her) own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing;

2.    In committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else;

3.    The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child;

AND

4.    The child was under the age of 14 years at the time of the act.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.

The force used must be substantially different from or substantially greater than the force needed to accomplish the act itself.

Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, the jury will consider all the circumstances, including the age of the child and (his/her) relationship to the defendant.

“Menace” means a threat, statement, or act showing an intent to injure someone.

An act is accomplished by fear if the child is actually and reasonably afraid [or (he/she) is actually but unreasonably afraid and the defendant knows of (his/her) fear and takes advantage of it.

Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.