When prosecutors charge someone with a crime, they must be able to prove that the person’s actions meet all of the elements of the crime. If you are charged with committing a lewd act with a child under the age of 14 under California Penal Code Section 288, the prosecution must prove beyond a reasonable doubt that the facts of your case meet the following elements:
- You touched, on purpose, a child’s body either on the bare skin or through the clothing; OR
- You caused, on purpose, the child to touch his/her own body, your body, or someone else’s body, either on the bare skin or through clothing; AND
- You committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of yourself or of the child; AND
- The child was under the age of 14 years at the time of the touching
The Element of Sexual Gratification
Let’s focus on the third element on the list above. The prosecution must prove that when you touched the child, you did so with the intent to arouse, appeal to, or gratify the sexual passions, lust, or desires of yourself or the child. This is an important element because it protects you from punishment for touches that were innocent or accidental. This is also typically a very difficult element for the prosecution to prove.
The courts have been very clear that a person cannot be guilty of violating PC 288 without having the intent to satisfy a sexual desire. As the Court of Appeal stated in People v. Gray (2011), “For the offense of lewd acts on a child under 14, the controlling factor is the purpose of the perpetrator in touching the child, and each case is to be examined in the light of the intent with which the act was done; if the intent of the act, although it may have the outward appearance of innocence, is to arouse the lust, the passion or the sexual desire of the perpetrator or the child, it stands condemned by the statute.”
The Difference Between Intent to Gratify and Actual Gratification
It is important to know that the prosecution does not need to prove that you or the minor actually experienced sexual gratification. It is enough to convict you of this crime if it was merely your intent to achieve arousal of yourself, the minor, or both by committing the touching of the minor.
How does the prosecution prove intent? It is impossible for any person to know what was actually going through the mind of another person at any point in time. The evidence of intent generally is found by looking at the events before and after the touching. For example, if you touched a minor and immediately withdrew from contact with the minor’s body, that may show that you made contact with the minor’s body accidentally and not with the intent of sexual gratification.
However, if the evidence shows you did not withdraw from the contact or that you asked the minor whether he or she enjoyed the touching, that could show that your intent was to arouse or satisfy either your own sexual desires, those of the minor, or both.
Let the Sex Crimes Defenses Attorneys at Wallin & Klarich Help You Now
Having the right attorney at your side can make a tremendous difference if you are charged with committing a lewd act with a minor. You need an experienced criminal defense attorney who knows how to defeat the prosecution’s claim that you intended to fulfill a sexual desire when you made contact with the child.
At Wallin & Klarich, our attorneys have been successfully defending clients like you in these cases for over 35 years. We will use all of our expertise and skill help you obtain the best possible outcome in your case.
With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich child molestation attorney available to help you no matter where you are located.
Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.