Defenses to Lewd conduct with a Minor in California – PC 288
If you are charged with lewd or lascivious acts upon a child under California Penal Code 288 you may have several defenses available to you depending on the circumstances of your case. An experienced defense attorney can discuss with you what options are available and what defense would work best in your case. The following is a list of defenses you may have available to you if you are charged with child molestation.
Accidental Touching
In order for you to be convicted of lewd conduct with a child you must have acted willfully, or purposely. If the touching was done accidentally you cannot be convicted under California Penal Code 288.
Your criminal defense attorney can help you present evidence and facts to the court that show you did not willfully or intentionally touch the minor for the purpose of sexual arousal or gratification.
No Use of Force or Fear
In order for you to be convicted under California Penal Code 288(b) you must have used force, violence, duress, menace, or fear of immediate unlawful bodily injury to commit the act. If you did not employ any of these tactics, you may not be convicted of committing child molestation pursuant to California Penal Code section 288(b).
A conviction under California Penal Code 288(b) carries a mandatory prison sentence. It is important to contact an experienced defense attorney to help you fight against such serious charges and prove that you did not use force or fear to commit a lewd act upon the minor.
Lack of Intent
Under 288 PC you must have engaged in the lewd conduct with the intent to arouse or gratify the sexual desires of you or the child. If you did not engage in the touching with the intent to cause sexual gratification you cannot be convicted under California Penal Code 288.
Other Possible Defenses
Depending on the facts of your case your defense attorney may be able to assist you to present other facts and evidence to help you get the charges dismissed.
In many child molestation cases it is the word of the minor that is the basis of the charge. An experienced defense attorney can assist you to present forensic evidence that shows your innocence. Your attorney may also be able to help you gain information and evidence that shows the allegations are completely false.
Wallin & Klarich has developed a specific defense strategy that has lead many of our clients to have their cases dismissed or to obtain not guilty verdicts when the case was required to go to a jury trial. This strategy consists of sixteen specific things that our law firm does on behalf of our clients.
Consent is Not a Defense
Even if the minor consented to the sexual contact or appeared to consent to the sexual contact you can still be convicted of lewd conduct under 288PC. In the state of California, a minor is not legally able to give consent to engage in conduct that would constitute an offense under California Penal Code 288. As a result, consent is never a defense to charges of child molestation. (CALCRIM 1110).
Age Requirements of Lewd Conduct
If you did not know the age of the minor when you committed the lewd act, you cannot use that as a defense to charges for child molestation. To be charged with child molestation under California Penal Code section 288(a) or (b) it only matters that the minor was under the age of 14, even if you were not aware that the child was under the age of 14 at the time of the offense. California has consistently found that mistake of fact is not a defense to a charge of child molestation per Penal Code 288. (CALCRIM 1110).
If you are charged with lewd conduct with a minor who is 14 or 15 years old you must be at least ten years older than the minor when you the act committed to be convicted under California Penal Code section 288(c). If you were not at least ten years older than the minor, who was 14 or 15 at the time of the offense, you cannot be convicted under California Penal Code 288(c).
Call Wallin & Klarich
The attorneys at Wallin & Klarich have over 40 years of experience defending clients who have been accused of committing sex offenses like child molestation. If you or a loved one is facing charges under California Penal Code 288, it is vital that you speak to an attorney so you can better understand the charges against you and what defenses are available. The attorneys at Wallin & Klarich understand the severe impact that sex offense charges can have on your life and will assist you through each step of the legal process to ensure that your rights are protected.
We have offices located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. Call Wallin & Klarich today to discuss your options under the circumstances of your case at (877) 4-NO-JAIL or (877-466-5245). We will get through this together.
