Child Molestation

Child molestation
Child molestation is one of the most serious offenses under California law.

Child molestation charges are prosecuted very aggressively in the state of California. A child molestation conviction can result in a state prison sentence, significant fines, and registration as a sex offender. The stigma of a child molestation conviction can negatively impact your personal, professional, and public life. Therefore, if you are accused of child molestation, it is important to retain a Wallin & Klarich attorney who will fight for you.

There are many different types of child molestation crimes, and they all carry serious penalties. Child molestation crimes include:

 

What is a Lewd or Lascivious Act?

Under California Penal Code Section 2881, child molestation is referred to as a “lewd or lascivious act.” A lewd or lascivious act is the touching of the body in a sexual manner. The touching does not have to be on a sexual organ nor does the touching have to be on bare skin.

Lewd or Lascivious Acts with a Child Under the Age of 14 – California Penal Code Section 288(a)

Under California Penal Code Section 288(a) it is illegal to engage in any lewd or lascivious act with a child under the age of 14.

To be convicted for committing a lewd or lascivious act with a child under the age of 14, the prosecution must prove:

  1. You willfully and lewdly touched any part of a child’s body, or you willfully caused the child to touch your body or the body of someone else;
  2. You committed the act with the intent of arousing, appealing to, or gratifying your lust, passions, or sexual desires, or the lust, passions, or sexual desires of the child; and
  3. The child was under the age of 14 at the time of the act.

 

Under California Penal Code Section 288(a), a conviction for committing a lewd or lascivious act with a child under the age of 14 is a felony punishable by up to eight years in state prison and a $10,000 fine.

Under California Law, a lewd act on a minor does not require that the perpetrator of the act is actually aroused by the act as long as he or she acted with the intent to arouse. It is also not a defense that the minor may have consented to the act.

A person convicted of a single act of lewd act on a minor may be sentenced to either 3, 6, or 8 years in prison or probation if the defendant qualifies for probation.

Probation

In order for a person who is convicted of a lewd act on a minor to eligible for probation he or she must meet the following requirements regarding the nature of the offense:

  • the person did not use force or violence or a weapon while committing the lewd act
  • the person did not cause bodily injury
  • the person was not a stranger to the minor victim
  • the person has not previously been convicted of a sex crime
  • the person did not commit substantial sexual conduct, which is defined as including any sexual penetration or touching of the genitals even if over the clothing
  • the person did not use any obscene matter

If the prosecutor has not alleged that the defendant’s criminal act constituted any of those offenses, then the defendant must also show that:

  • if the victim is a member of the defendant’s household, probation is in the best interest of the victim
  • the defendant is amenable to ongoing treatment
  • there is no threat of physical harm to the victim and the defendant is prohibited from residing near where the victim lives

Psychological Evaluation

Prior to being placed on probation for a lewd act on a minor under 14, a defendant must receive an evaluation from a reputable psychologist or psychiatrist as to the mental state of that person.

In defending cases, where people are accused of lewd acts on a minor, the sex crimes lawyers at Wallin and Klarich will frequently refer defendants to get an evaluation from one of several court-certified psychologists we work with who specialize in evaluating psychosexual behavior.

These evaluations can be helpful in two potential ways:

1) Prior to trial, a positive evaluation can convince the district attorney to offer a lower sentence by showing that our client is a low risk to re-offend and explaining any potential underlying psychological issues

Example: Jim is 73 years old. During a family party after having too much to drink Jim grabs his 13-year-old niece on her buttocks. In an interview with the police, he admits to doing this because he had too much to drink.

Jim obtains a psychological evaluation that shows that he has a substance abuse problem that is due to his PTSD from serving in the military, The report states that absent his excessive drinking he does not have a sexual interest in children and because he has started treatment he is unlikely to commit another sexual assault on a minor.

This report is then turned over to the district attorney’s office. Their office reviews and agrees to offer Jim a sentence of probation instead of prison with the condition that he obtain counseling and substance abuse treatment.

 

2) During the trial a psychological expert can testify that a defendant does not possess the trait of a sexual offender.

Example: Dave is accused by his adult stepdaughter of having molested her when she was younger. Dave denies the allegations and believes that the allegations are the result of manipulation from Dave’s ex-wife during a bitter divorce they are having.

Dave gets a psychological evaluation that shows that he does not have any of the personality traits of a sexual offender and any anti-social personality traits. The psychologist testifies at trial that he would expect that based on the nature of the allegations that Dave would show characteristics similar to someone attracted to children.

Lewd or Lascivious Acts with a Minor by Force or Fear – California Penal Code Section 288(b)

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Have you been arrested for child molestation in California?

Under California Penal Code Section 288(b), it is illegal to commit a lewd or lascivious act with a minor by force, fear, violence, threat or duress. A minor is defined as a person who is under 18 years of age.

A conviction for committing a lewd or lascivious act with a minor by force or fear under California Penal Code Section 288(b) is a felony punishable by up to 10 years in state prison and a $10,000 fine.

Lewd or Lascivious Acts with a Child Age 14 or 15 – California Penal Code Section 288(c)

Under California Penal Code Section 288(c), it is illegal to commit a lewd or lascivious act with a 14- or 15-year-old child. If the victim is 14 or 15 years of age and you were at least 10 years older than the victim at the time of the act, you will be facing serious consequences.

Depending on the circumstances of your case, committing a lewd or lascivious act with a child 14 or 15 years of age under California Penal Code Section 288(c) can be charged as a misdemeanor or felony. A misdemeanor conviction is punishable by up to one year in county jail. A felony conviction is punishable by up to three years in state prison.

Annoying or Molesting a Child – California Penal Code Section 647.6

Under California Penal Code Section 647.62, it is illegal to annoy or molest a child under the age of 18. This occurs when a person is motivated by sexual interest in a child.

To be convicted for annoying or molesting a child in California, the prosecution must prove:

  1. You engaged in conduct directed at a minor;
  2. A normal person, without hesitation, would have been disturbed, irritated, offended or injured by your conduct;
  3. Your conduct was motivated by an unnatural or abnormal sexual interest in the minor; and
  4. The minor was under the age of 18 years at the time of the act.

Depending on the circumstances of your case, annoying or molesting a child under the age of 18 under California Penal Code Section 647.6 can be charged as a misdemeanor or felony. A misdemeanor conviction is punishable by up to one year in county jail and a $5,000 fine. A felony conviction is punishable by up to three years in state prison.

Under California law, the crime of annoying or molesting a child does not require that the defendant physically touches the child as long as the other elements of the charge are met. Some examples of conduct that could result in a person being convicted of annoying or molesting a child are:

  • Sending a message over Instagram to his 16 year old student saying that she looks hot and you want to have sex with her.
  • Sending nude photographs to someone underage
  • Exposing yourself to someone underage

Your sentence for annoying or molesting a child can increase if you have a prior criminal history involving sex offenses with a minor. If you have a previous misdemeanor annoying or molesting a child conviction, your second conviction is punishable by up to one year in state prison instead of county jail. If you have a previous felony conviction for a sex offense involving a minor, a felony annoying or molesting a child conviction is punishable by up to six years in state prison.

Oral Copulation – California Penal Code Section 288a

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You could be facing up to 10 years in prison for an oral copulation conviction.

Under California Penal Code Section 288a, it is unlawful to commit the act of oral copulation with a minor or by force or fear. Oral copulation is defined as any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person.

Under California Penal Code Section 288a(b)(2), if the defendant was 21 years of age or older and the minor was under the age of 16 at the time of the oral copulation, the oral copulation charge is a felony punishable by up to three years in state prison.

Under California Penal Code Section 288a(c)(1), if the victim was under the age of 14 and the defendant was at least 10 years older than the victim at the time of the oral copulation, the oral copulation charge is a felony punishable by up to eight years in state prison.

If the victim was under the age of 14 and the defendant was less than 10 years older than the victim at the time of the act, the defendant can be charged with performing lewd acts with a minor under California Penal Code Section 288. If found guilty for this felony offense, you could be sentenced to up to eight years in state prison.

Under California Penal Code Section 288a(c)(2)(3), oral copulation of a minor by force, fear or threats under California Penal Code Section 288a(c)(2)(3) is a felony offense. If the victim was between 14 and 17 years old at the time of the act, a conviction is punishable by up to 10 years in state prison. If the victim was under 14 years old at the time of the act, a conviction is punishable by up to 12 years in state prison.

Soliciting a Minor for Lewd Purposes – California Penal Code Section 288.4

Under California Penal Code Section 288.4, it is illegal to arrange to meet a minor for sexual purposes. The defendant must be motivated by a sexual interest in the child and must have arranged the meeting for the purpose of engaging in lewd or lascivious acts with the child.

To be convicted of soliciting a minor for lewd purposes under California Penal Code Section 288.4, the prosecution must prove:

  1. You arranged a meeting with a minor or a person you believed to be a minor;
  2. You were motivated to arrange the meeting with a minor by an unnatural or abnormal sexual interest in the minor;
  3. You had a specific intent to engage in lewd or lascivious acts with the minor.

Under California Penal Code Section 288.4, soliciting a minor for lewd purposes can be charged as a misdemeanor or felony. If you have no prior criminal record and it is your first offense, you may be charged under Penal Code Section 288.4 with a misdemeanor. A misdemeanor conviction is punishable by up to one year in county jail and a $5,000 fine. A felony conviction is punishable by up to one year in county jail or 16 months, two or three years in state prison and a $10,000 fine.

Continuous Sexual Abuse of a Child – California Penal Code Section 288.5

Sex offender registration - child molestation
You must register as a sex offender each year following your conviction.

Under California Penal Code Section 288.5, it is unlawful to repeatedly sexually abuse a child.

To be convicted of continuous sexual abuse of a child under California Penal Code Section 288.5, the prosecution must prove:

  1. The defendant resided in the same home with the child, or had “recurring access” to the child (the ongoing ability to approach and contact the child time after time);
  2. The defendant engaged in three or more acts of “substantial sexual conduct” (oral copulation, masturbation or penetration) with the child OR engaged in three or more “lewd or lascivious acts” with the child;
  3. The three or more acts occurred over a time period of three months or longer; and
  4. The child was under the age of 14 at the time of the acts.

A conviction for the continuous sexual abuse of a child under California Penal Code Section 288.5 is a felony punishable by 6, 12, or 16 years in state prison. A conviction under Penal Code Section 288.5 is considered a violent or serious felony and will count as a “strike” under California’s Three Strikes Law.

Sex with a Child Under the Age of 10 – California Penal Code Section 288.7

Under California Penal Code Section 288.7(a), it is illegal to engage in sexual intercourse or sodomy with a child under the age of 10. A conviction under Penal Code Section 288.7(a) is a felony punishable by 25 years to life in state prison.

Under California Penal Code Section 288.7(b), it is illegal to engage in oral copulation or sexually penetrate with a foreign object, a child under the age of 10. A conviction under Penal Code Section 288.7(b) is a felony punishable by 15 years to life in state prison.

Sex Offender Registration – California Penal Code Section 290

If you are convicted of any felony child molestation offense, you will be required to register as a sex offender according to California Penal Code Section 2903. Starting in 2021 sex offenders must renew their registration for 10, 20 years or for life depending on which crime they are convicted of.

Registration as a sex offender can have a major impact on where you live or work, and your standing in the community. Failing to register as a sex offender or violating registry requirements can result in more prison time.

Defenses to Child Molestation Charges

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You need an experienced attorney to defend your rights.

If you are facing child molestation charges in Orange County, it is important to retain an experienced sex crimes defense attorney who will fight for you. Depending on the circumstances of your case, a skilled and knowledgeable sex crimes lawyer may be able to argue for a reduction or dismissal of the charges against you with a viable defense. Defenses to these charges include:

  • The touching was accidental: You did not intentionally or willfully intend to touch the child to sexually gratify or arouse yourself or the child.Example: While Jim is playing with his stepdaughter he accidentally touches her on her buttocks, someone witnesses this and reports him to the police. Although the touching is interpreted as sexual it was simply accidental he did not intend to touch her on that part of her body.
  • Lack of intent: There was no intent to sexually gratify or arouse yourself or the child.Example: a relative touches a child’s buttocks to examine a rash. Although there is intentional touching, there is no sexual intent.
  • There was no use of force, fear, violence, duress, menace or threats (if you are accused under Penal Code Section 288(b)).
  • The accuser’s accusations are false and lack credibility.

What is a Pre-filing investigation for Child Molest PC 288

Police reports of lewd act on a minor are investigated by law enforcement and then forwarded to the district attorney’s office for prosecution upon completion of an investigation. If a person believes they are being investigated for potentially committing a lewd act on a minor, it is important to know how law enforcement will gather evidence.

Initial interview with the alleged victim

Typically, the minor victim is interview by deputies from the law enforcement agency who will take an initial report. If the abuse is reported at a police station or via a 911 call, these deputies may not be specially assigned to deal with sexual abuse and are merely trained to take an initial report.

Forensic interview

In most cases involving minor victims law enforcement will refer the case for a forensic interview with an interviewer who is specially trained in questioning minor victims of sexual abuse. This interview will usually go into more detail about the full nature of the abuse beyond information taken in an initial report.

Pre-text call

One very common manner of gathering evidence is for law enforcement to try to have the victim or a relative of the victim contact the potential suspect and get him or her to admit the sexual abuse in a phone call or over text message

Suspect interview

Law enforcement officers will interview suspects and very typically try to get them to admit to committing the offenses they are being accused of. In order to do this law enforcement is permitted to lie to the defendant to get him or her to make admissions. Common tactics include making statements like “we already know you did it, we have your DNA, we just need to know why you did it.”
“This is the time to man up and accept responsibility for what you’ve done so I can show the judge this guy took some responsibility.”

These tactics frequently cause an inexperienced and scared suspect to make damaging admissions.

What should you do if you are being accused of child molestation and the case hasn’t gone to court yet?

If you are accused of child molestation but a case has not yet been filed you should hire a criminal defense attorney to represent you for pre-filing representation. You should not say anything to the police without having an attorney. Many times getting an attorney can be the difference between having a very serious charge filed against you and having no charges filed due to there not being enough evidence.

Call Wallin & Klarich Today

If you or a loved one is facing a child molestation charge, it is critical that you speak to an experienced sex crimes attorney. At Wallin & Klarich, our attorneys have over 38 years of experience successfully defending our clients accused of child molestation. Our attorneys will fight to get you the best possible outcome in your case.

With offices in Los AngelesSherman OaksTorranceTustinSan DiegoRiversideSan BernardinoVenturaWest Covina and Victorville, there is an experienced Wallin & Klarich Southern California criminal defense attorney near you no matter where you are located.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.


All of the information provided on this page was retrieved from the following sources:

1. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=281-289.6

2. http://law.onecle.com/california/penal/647.6.html

3. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=290-294