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

There are a number of defenses to a charge of committing a lewd or lascivious act with a child.  It is important that you speak with an experienced sex crimes attorney if you or a loved one is facing a sex crimes charge.  An experienced attorney can help you defend your rights.  Below are a few defenses to consider.

Child’s Consent Not a Defense
It is not a defense that the child may have consented to the act.  See People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7 [26 Cal.Rptr.2d 567].

No Touching Occurred
You cannot be convicted of committing a lewd or lascivious act on a child if there was no touching involved.  Also, the touching must be willful.  Any accidental touching is not considered a willful touching.

Not for Sexual Arousal
For this crime to be committed, the defendant must have committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child.  This means that a defense can be used if the touching occurred for any other reason other than for sexual arousal.

It is important to note that it is not a defense if you did not get sexual arousal out of the touching.  It is enough to be a crime if your intention of the touching was for sexual arousal.

Age Requirement
This crime generally requires that the child to be under 14 years of age.  If the child is 14 years of age or higher, you cannot be charged with committing a lewd or lascivious act under California Penal Code Section 288(a)-(b).

California Penal Code Section 288(c) requires you to be 10 or more years of age older than a child that is 14 or 15 years of age for you to be convicted of committing a lewd or lascivious act.  Therefore, you cannot be charged with this crime if you are not 10 years or more years of age than the child.

No Use of Force or Fear
Section 288(b)(1) requires the defendant to use force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else in committing the unlawful touching.  You cannot be convicted of this crime if none of the above listed was used.  However, you may still be charged with committing a lewd or lascivious act under Section 288(a).