Lewd Behavior with a Child Frequently Asked Questions — Penal Code 288
Our skilled criminal defense attorneys have been successfully defending clients facing PC 288 charges for more than 35 years. Seemingly every day, our lawyers are asked questions about the crime of lewd or lascivious acts involving a minor. Here are some of the most common questions our PC 288 lawyers are asked along with our answers to them:
1. Does the act have to involve penetration in order to be convicted under PC 288?
The prosecution must prove that you willfully touched any part of a child’s body or willfully caused the child to touch his or her own body or your body for the purposes of sexual gratification or arousal to convict you of child molestation.
The act only has to involve a touching for the purpose of your own sexual gratification or the child’s gratification. To be convicted, the act does not have to involve penetration. The touching could be on any part of the child’s body, and it could be over the minor’s clothing.
2. Can I use the fact that I was not aroused by the touching as a defense to PC 288 charges?
In order to be convicted of the crime of lewd or lascivious acts with a minor under PC 288, the prosecution must prove several elements. One of those elements is that your intent in touching the minor was to sexually arouse or gratify yourself or the alleged victim. However, the prosecution does not have to prove that you or the child actually experienced sexual arousal or gratification.
If you did not commit the touching for the purpose of sexual gratification or arousal, it may be a defense to the crime. This may be the case if the touching was accidental. The fact that you did not actually experience sexual arousal or gratification as a result of the touching is not a valid legal defense to PC 288 charges.
3. Can I be charged with multiple offenses under California Penal Code Section 288 if the lewd behavior with a minor happened only once?
Yes, even if the touching occurred on one occasion, you could be charged with more than one count of child molestation under California Penal Code Section 288 (CALCRIM 1110). The reason why is because each individual act that meets the requirements of a lewd or lascivious act with a minor under PC 288 can be prosecuted as a new and separate criminal charge.
In other words, if you fondle one area of a minor’s body with the intent to gain sexual arousal or gratification and then you have intercourse with the minor, you could be charged with two separate sex crimes. Although both of the acts happened on one occasion, they are considered two separate acts. There is no requirement that the two acts be separated by a set period of reflection.
However, if you perform an act of child molestation on the same child on three or more separate occasions during a period of three months or more, you could face continuous sexual abuse of a minor charges under PC 288.5.
4. If I am charged with more than one count of child molestation can I be charged with continuous sexual abuse of a child under California Penal Code Section 288.5?
The crime of continuous sexual abuse of a minor under PC 288.5 is a similar crime to lewd or lascivious acts involving a minor. The main differences between these two crimes are that PC 288.5 requires three or more acts of child molestation to occur over a period of three or more months and that a PC 288.5 conviction carries more severe consequences.
In order to prove that you are guilty of continuous sexual abuse of a child, the prosecution must prove the following:
- You lived in the same home as the alleged victim or had recurring access to the minor
- You engaged in three or more acts of child molestation within a period of three or more months, and
- The minor was under the age of 14 at the time of the acts
If you are convicted of continuous sexual abuse of a child under PC 288.5, you could be sentenced to 6, 12, or 16 years in state prison. Contact the attorneys at Wallin & Klarich for more information on what defenses may be available to you if you are charged with continual sexual abuse of a child.
5. What if I did not know how old the minor was?
The fact that you did not know the age of the alleged victim is not a valid legal defense to PC 288 charges. California has specifically held that mistake of fact relating to the minor’s age is not a valid legal defense to child molestation charges under California Penal Code Section 288 (CALCRIM 1110).
To be convicted of child molestation under California Penal Code Section 288, it only matters that the minor was under the age of 14. It does not matter if you were not aware of the fact that the child was under the age of 14.
6. What if the minor consented to the act in question?
Consent is never a valid legal defense to charges under California Penal Code Section 288. Under California law, anyone under the age of 18 is not legally able to provide consent to sex. Therefore, arguing that the minor agreed to the sexual act is not a valid defense to child molestation charges.
7. If I am convicted of using force to commit lewd acts upon a minor under California Penal Code Section 288(b) can I also be charged with battery?
Yes, battery is a lesser offense that is included within a charge under California Penal Code Section 288(b).
Under California Penal Code Section 242, battery is defined as “any willful and unlawful use of force or violence upon the person of another.” This means if you are found guilty of using any force to commit a lewd behavior upon a minor, you may also be found guilty of battery (CALCRIM 1111).
It should be noted that in order for you to be convicted of using force to commit a lewd or lascivious act upon a child, the court must find that the force you used was substantially greater than the force that was necessary to commit the sexual act.
8. If I am a minor under the age of 14, can I be convicted of violating California Penal Code Section 288(a)?
Yes, minors can be charged and convicted under California Penal Code Section 288(a).
Cases of child on child sexual abuse are very complicated. First, the court must decide whether you should be tried as an adult in criminal court or if your case should be forwarded to the juvenile court system. If it is proven that you knew the wrongfulness of your actions, you will likely be charged as an adult, regardless of your age.
This matter of law is highly complex. That is why you should not hesitate to contact an experienced child molestation attorney if you or someone you love has been accused of committing a lewd or lascivious act on a child.
9. Where can I find an experienced child molestation attorney near me?
Child molestation is a serious crime in California. If you are convicted under PC 288, you face significant penalties, including years in prison and the requirement to register as a sex offender for the rest of your life. You should immediately speak to an experienced child molestation attorney about how you may be able to avoid these harsh consequences.
Wallin & Klarich has over 35 years of experience successfully defending clients accused of child molestation. Our law firm has developed a reputation for being one of the premier law firms when it comes to defending individuals facing sex crime charges. We understand the complexities of the law when it comes to child molestation cases, and we can help you understand your options and attempt to fight the charges aggressively.
We have offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego so that our attorneys are available to help you no matter where you work or live.
Call our law firm today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation regarding your case. We will get through this together.