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May 29, 2018

Wallin & Klarich was established in 1981 and throughout the past 38 years, our law firm has provided outstanding and aggressive representation to thousands of clients facing sex-crime charges. Whether our clients are being accused of child molestation, indecent exposure, lewd acts, oral copulation, sexual battery or rape, Wallin & Klarich has been by their side as their trusted attorney.

3 Common Misconceptions Regarding Lewd or Lascivious Acts with a Minor (PC 288) in 2020

In order to convict you of committing lewd or lascivious acts with a minor
under California Penal Code Section 288, the prosecution must prove all of the following
elements:

  • 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
  • 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
  • The child was under the age of 14 at the time of the act

These elements of PC 288 leave room for interpretation, which causes some people to form misconceptions about the crime. Let’s examine three of the most common misconceptions about lewd acts with a minor and explain the truth about them.

The act must have involved penetration for a person to be convicted

The most common misconception regarding the crime of committing lewd or lascivious acts with a minor is that penetration must have occurred for a person to be convicted of this crime. The truth is that you can be convicted under PC 288 without penetration occurring.

An element of PC 288 that must be proven in order to convict a person is that the accused touched any part of a child’s body or caused the child to touch the accuser’s body or someone else’s body. This could include touching the minor’s bare skin or over the clothes with the required sexual intent.

You had to be sexually aroused by the touching to be convicted under PC 288
One element of PC 288 requires that you committed the act with the intent of sexual arousing or gratifying yourself or the alleged victim. Many people assume this to mean that you or the alleged victim must have been sexually aroused as a result of the incident in order to be convicted. This is not true.

What matters in a PC 288 case is your intent. It does not matter if you or the alleged victim were actually aroused; as long as your intent was sexual arousal or gratification, you could be convicted of committing lewd acts with a minor.

Prosecutors realize that the “intent” requirement may be difficult to prove incertain sex crime cases. When the nature of the touching is “equivocal” or “unclear” as to the intent of the accused the prosecution will take steps to make it easier to obtain a conviction in a sex crime case.

As one example the police will often be instructed to have the alleged victim make a phone call to the accused. This entire purpose of this call is for the accused to “admit” to having a sexual intent when the touching took place. The alleged victim will often ask for the accused to “apologize” for their conduct. These conversations can be tape recorded because they are being done under the watchful eye of law enforcement. The accused can make the prosecutors job much easier if they were to speak to the alleged victim in any way if they expect that criminal charges may be filed (or have been filed against them). This is important advice Wallin and Klarich provides to all of our potential new clients. Often our clients who deny all wrongdoing can say things during these “set up” phone calls that they will later regret, even when they are not guilty of any criminal offenses.

If there are no admissions or confessions by the accused, it makes it much more difficult in some cases to prove sexual intent. In 2020 we advise all of our clients to be careful when they interact with minors. In 2020 any touching of a minor by an adult can be “misinterpreted”. A hug can seem “sexual in nature” to a child who has been told by their parents or in school videos that “if you feel uncomfortable” you should report that touching.

We advise all of our potential clients who have regular contact with minors (such as teacher, medical personnel, coaches) that they should try never to be alone with a minor. When we provide this information to educators, they often find it difficult to comply with our advice. They often view their job as to be there for students that may have problems at home, come from a broken home or have other mental health issues. Educators must realize that when they are alone with a student or have any type of physical contact with a student, they are putting themselves at risk in 2020.

You can’t be charged with this crime if 10 years have passed since the alleged incident

Felony sex crimes in California previously had a 10-year statute of limitations. This meant that you could not be charged with an offense if 10 years had passed since the alleged victim’s 18th birthday. However, there are two important exceptions to this prior rule which are now the law in California. These two new laws can extend the 10-year statute of limitations:

  • An exception to the statute of limitations, PC 803(f), allows charges to be filed within one year of when the crime was reported to law enforcement if substantial sexual conduct was involved and there is independent evidence to support the alleged victim’s claims.
  • SB 813 became California Law beginning January 1, 2017 . SB 813 eliminated the statute of limitations. The law applies to crimes committed after that date, as well as crimes where the statute of limitations was in effect prior to Jan. 1, 2017 and had not expired before that date. What this means is that for allegation of violations of Penal Code Section 288 that occurred on or after January 1, 2017 there is no statute of limitations.

Frequently Asked Questions (FAQs):

What Does It Mean to Commit a “Lewd or Lascivious Act”?
Penal Code Section 288(a) prohibits the willful commission of any “lewd or lascivious act” with a child under the age of 14, but those terms are not defined in that section. So under California law, what do the words “lewd” and “lascivious” mean?

The two words have long been held to have the same meaning. They are used to describe any act that represents an offensive sexual desire. Though lewd or lascivious acts often involve inappropriately touching another person, contact with another person’s body is not always required for the commission of a crime. Some examples of lascivious acts might include:

  • Masturbation in view of another person
  • Groping a person’s buttocks or genitals on a bus or subway car
  • Causing another person to touch their own genitals or someone else’s body

The Crime of a Lewd or Lascivious Acts with a Minor Under 14: PC § 288(a)
More commonly, when a lewd or lascivious act is committed against a child, it is described in another way: child molestation.

The law that prohibits child molestation is Penal Code Section 288(a). The alleged act must involve a child under the age of 14, but that is not the only element that must be proven for a conviction.

If you are charged with violating California Penal Code section 288, the district attorney
must prove beyond a reasonable doubt 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
  • The child was under the age of 14 years at the time of the touching.

As you can see from this list, the important factor that separates an innocent act from one that is criminal is the intent with which the act is performed. The district attorney must prove beyond a reasonable doubt to the jury that when you touched the child, you did so with the intention 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 prosecutor to prove.

How do you defend against an accusation that the contact you made with the child was intended to satisfy a sexual desire? Your first step should be to hire the experienced sex crimes defense attorneys at Wallin & Klarich. Your attorney will have the ability to defend against an accusation of lewd acts with a minor and can present evidence that shows a lack of intent related to the sexual passions of yourself or the child and can argue against the inferences the prosecution is trying to make from the evidence presented during a trial.

What Is the Penalty for Child Molestation Under CA Penal Code § 288(a)?

The possible penalties for violating Penal Code Section 288(a) vary based on whether force was used, and if so, whether the victim was injured.

Any violation of PC288 is a felony and is punished severely under California law. If no force is used to commit the act, you can be sentenced to three, six, or eight years in a California state prison, and fined a maximum of $10,000. However, you may be eligible for felony probation.

If you are convicted of using force, violence, threat, or duress to commit the act, and the child is under the age of 14, you will be convicted under Penal Code Section 288(b), and can have your sentenced increased to five, eight, or 10 years, and will not be eligible for probation.

If the force or violence caused bodily harm to the victim, the prosecutor will likely seek enhancements to your sentence, which could increase the length of your sentence by a minimum of five years up to a maximum of a life sentence.

In addition, any violation of any part of Penal Code Section 288 will mean that you will be required to register as a sex offender under Penal Code Section 290.

Do I need a Sex Crimes Lawyer Near Me?

Wallin & Klarich has offices throughout Southern California and services Tustin, Riverside, Victorville, West Covina, San Bernardino, Los Angeles, San Diego and the surrounding areas. If you are accused of a sex crime there is a Wallin & Klarich, A Law Corporation, office near you.

Why Hire Wallin & Klarich?

sex crimes lawyersIf you or someone you love has been accused of committing lewd or lascivious acts involving a minor, you should contact an experienced child molestation attorney at Wallin & Klarich immediately. Our skilled sex crimes defense lawyers have developed a track record of success in sex crimes cases. Let us help you now.

In addition, we pride ourselves on providing the best customer service possible. Our clients continue to write excellent reviews of our service and refer their friends and family to us because of the way we treat them. When you hire Wallin & Klarich, you are not just a client, you are a member of our family, and that is why we treat you and your case with the utmost respect and care.

Call our office today at (877) 4-NO-JAIL or (714) 386-7061 for a free phone consultation. We will be there when you call.

Best Rated Sex Crimes Defense Lawyers

Wallin & Klarich is synonymous with excellent sex crime attorneys. The consistent success of our sex crimes attorneys has earned our law firm a reputation for being one of the most experienced sex crime defense firms in the state. This has led us to earn achievements such as a 5 out of 5 AV rating on Lawyers.com, a 10 out of 10 on AVVO and an A+ on Better Business Bureau. Our lawyers have been featured prominently on local and national news outlets due to their experience in the field such as SuperLawyers.com Rising Star for 2019.

Call Wallin & Klarich for Free Criminal Defense Consultation Today

If you are accused of a sex crime, contact one of our skilled and knowledgeable sex crime attorneys at Wallin & Klarich. Our law firm has a reputation of success handling sex crimes, and our unrivaled experience will help us work toward a favorable outcome in your case.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, our experienced sex crimes defense lawyers are available to help you no matter where you work or live.

Contact our office today at (877) 4-NO-JAIL or (714) 386-7061 for a free phone consultation. We will be there when you call.

Author:Stephen D. Klarich

Stephen D. Klarich is one of the most highly respected sex crime attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Klarich a premiere Southern California attorney. Mr. Klarich founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Klarich has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving sex offenses, murder, violent crimes, misdemeanors, felonies and other sex crimes. View all posts by Stephen D. Klarich.

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