Lewd Acts With A Child – CA PC 288
California Child Molestation Lawyers
Have You Been Charged With Lewd Acts With a Child in California?
Your entire life can be ruined if you are convicted of lewd acts with a child in California. Even if you are not convicted of these charges, the mere accusation that you molested or touched a child will have a negative effect on your education, employment options, current and/or prospective sentimental relationships, and your life. However, you do not have to go through this challenge on your own.
When you retain Wallin & Klarich to represent you, you can place your trust in our team of criminal defense attorneys. With more than 35 years of experience successfully defending those accused of child molestation in southern California, our attorneys have the knowledge and skill necessary to help you obtain a favorable result in your case. We currently hold offices in Orange County, Riverside, San Bernardino, Victorville, Los Angeles, San Diego, West Covina and Torrance.
If you are charged with a child molestation offense such as lewd acts with a child, your freedom depends upon choosing a law firm that will aggressively and effectively represent you. Contact Wallin & Klarich today for a free, no-obligation phone consultation so we can begin working on your case immediately.
What is “Child Molestation” Under California Penal Code Section 288(a)?
If you are being charged with lewd acts with a child in California, you should to speak to our criminal attorneys at Wallin & Klarich to help you avoid being arrested and/or convicted right away.
First, you need to understand more about child molestation laws under PC 288(a). What is commonly referred to as “child molestation” is more technically called “lewd acts with a child under age 14.”
As with any crime, the crime of child molestation under California Penal Code Section 288(a) requires proof of certain elements. A crime’s “elements” are like the essential ingredients of a recipe. Just like you need all of the essential ingredients in order to make a given food item, the prosecution must prove all of the essential “elements” of a violation of Penal Code Section 288(a) in order to convict you. If one “element” is missing, the accused person cannot properly be convicted.
The elements that must be proven in a lewd acts with a child case are:
- 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
Is Touching Limited to the Child’s Private Areas?
Many people believe that they cannot be convicted of lewd acts with a minor because they did not touch the minor’s private areas, such as the genitals or buttocks. However, this is a myth about the law that is untrue. As described in the elements of the crime listed above, you could be convicted of this crime if you touched any part of the child’s body, even if it was through the child’s clothing.
For example, you could be charged with this crime if you rubbed the foot of a child under 14 years of age. If it can be shown that you rubbed the child’s foot with a sexual intent, it could be a violation of this law.
What is the Intent Requirement Under California Child Molestation Law?
As discussed above, under PC 288(a), it does not matter what part of the body you allegedly touched. As long as you performed the touching with a “sexual intent,” you could be convicted of this crime. So, what does “sexual intent” mean?
To be convicted of this crime, the touching has to be committed with the “intent” to sexually arouse or gratify either yourself or the child. There is no requirement that actual sexual gratification or arousal occur, only that you had the intent to sexually arouse or gratify yourself or the child.
So, for example, let’s say you touched a child under 14 years of age with the intent to sexually arouse yourself, but while you were in the act of touching the child, you decided to stop. You had already committed the act of touching the child but you did not become sexually aroused by the touching. It does not matter that you did not become sexually aroused. The crime has already been committed.
Mistake Of A Minor’s Age is No Defense To PC 288
Another common myth related to lewd acts with a minor is that if the minor looked 18 years old or older at the time of the alleged incident, you cannot be charged with this crime. This myth is not true because mistake of age is not a valid defense to this charge.
Under California law, it is no defense that the accused believed the child was over 18 or older, no matter how reasonable that belief might have been. Such mistakes involving age may be a valid defense to statutory rape charges under California law, but not to a charge of lewd acts with a child under 14 years old under Penal Code Section 288(a).[i]
Statutory rape laws make it a crime to have sexual intercourse with someone who is under 18 years old.[ii] Child molestation laws make it a crime to lewdly touch a child under 14.
To illustrate the difference between these crimes, let’s say you had sex with a 17-year-old girl. The girl claimed she was 18 and her appearance made her convincingly look 18. She also showed you an ID that proved she was 18, but the ID turned out to be fake. In this case, your mistaken belief that the girl was 18 years old would be a valid defense to a statutory rape charge.
However, let’s now consider a similar scenario with a 13-year-old girl. If you had sexual intercourse with that girl, no matter how convincing you think it is that she looks and acts 18 years old, you could be convicted of child molestation. That is because mistake of age is not a valid defense to child molestation charges.
Consent of The Minor to the Touching is Not a Defense to PC 288
Consent is also not a valid defense to charges of lewd acts with a minor. Under California law, minors cannot legally consent to sex. Even if a minor wanted you to have sex with him or her, you could be convicted of child molestation.
If it is true that it was the child’s idea to perform sexual acts or if the accused initially rejected the child’s advances but the child pressed the accused to touch him or her in a lewd manner, it would not be a defense to the charges.
What are Some Defenses to Lewd Acts with a Minor Charges
Now that you understand some common myths about defenses to PC 288(a) charges, you need to know some defenses that could be valid. Remember, all of these defenses do not apply in all cases. You should speak to an attorney about which defense would work best for you.
Our attorneys have successfully used some of the following defenses to help our clients achieve a favorable outcome in their child molestation cases:
- Accidental touching – The touching has to have been done on purpose. If you accidentally touched the child and were accused of this crime, your lawyer has a valid defense to the charges against you.
- Lack of intent – In order to convict you of this crime, the prosecution must prove that you had the intent to sexually arouse or gratify yourself or the child when committing the alleged act. If you did not commit the act with the intent to sexually arouse or gratify yourself or the minor, your attorney could use this as a valid legal defense.
- The touching did not happen – There are reasons why false accusations of child molestation may occur. For instance, someone going through a custody battle may accuse their ex-spouse of child molestation to gain an upper hand. Your attorney may be able to help you show that the alleged incident did not occur.
What is the Punishment for Violating Penal Code Section 288(a)?
If you are accused of child molestation under PC 288(a), you face serious consequences that could impact you for the rest of your life. Not only do you face a significant amount of time in prison and expensive fines, you also could be required to register as a sex offender for the rest of your life.
A violation of Penal Code Section 288(a) is a felony offense. If you are convicted of this crime, you face a sentence of 3, 6 or 8 years in prison. You could also face fines of up to $10,000. Of course, this sentencing will apply only if you are convicted of one charge. If you are convicted of more than one charge of a violation of lewd acts with a child under Penal Code Section 288(a), you could be sentenced to as much as life in prison.[iii]
Alternatively, if you’re convicted of violating this law, the judge can grant probation, and he or she could require you to serve up to 364 days in county jail as a condition of your probation. There are some cases where the law does not allow for a defendant to be granted probation, and, in those cases, the judge must sentence the defendant to serve time in California State Prison.[iv]
A conviction for lewd acts with a child is also a “strike” under California’s Three Strikes law. If you have two strikes on your record from previous convictions for violent crimes, you could face 25 years to life in prison for your third strike crime.
In addition, if you are convicted of this crime, regardless if probation is granted, the judge will order that, once you are released from jail or prison, you must register as a sex offender pursuant to California Penal Code Section 290.[v] This requirement to register as a sex offender is a lifetime requirement.
Can You Be Charged with Multiple Counts of Lewd Acts with a Minor?
Many times, people accused of crimes face multiple counts of the same charge. The same can be true in cases involving lewd acts with a minor under 14. Each individual act that satisfies the requirements of PC 288 can be prosecuted as a new, separate charge.
For example, if you touched an area of a minor’s body with the intent to sexually arouse or gratify yourself, then you proceeded to have intercourse with the child, you could face two separate sex crimes.
However, if you engaged in lewd acts with the minor on several separate occasions, you could be charged with the separate crime of continuous sexual abuse of a child under PC 288.5. In order to convict you of this crime, the prosecution must prove that:
- You lived in the same home or had recurring access to the minor
- You engaged in three or more acts of child molestation within a three-month period of time, and
- The minor was under the age of 14
This crime carries more serious penalties. If you are convicted of PC 288.5, you face up to 16 years in state prison.
How Do California Police Investigate Charges for Lewd Acts With a Child?
If you are being accused of child molestation, the police will likely attempt to contact you to speak about the allegations. During this process, they may use certain tricks to try to get you to admit to the crime or voluntarily give up evidence that could be used against you.
In our experience, there are three major tricks the police use with great success in investigating these cases – and when we say “success,” we mean their success and not yours. These tricks are:
- The “out of custody interrogation” – This is when you have not been placed under arrest but police attempt to ask you questions about the matter. They may be direct questions or they may be statements that are likely to produce a reply that incriminates you.
- The “polygraph or lie detector test” – Police may ask you to take a lie detector test to prove your innocence. In fact, they may imply that you are required to take one. However, you are under no legal obligation to take a lie detector test and you should not do so because you could incriminate yourself.
- The “pretext phone call” – A pretext phone call is when the alleged victim of a crime calls you while under the supervision of the police. The call is being recorded for evidence, and the alleged victim may attempt to get you to admit you committed the crime or make incriminating statements that can be used against you.
Falling for one of these police tricks could greatly damage your ability to obtain a favorable result in your case. That is why you should speak to an attorney as soon as you are accused of child molestation. Your attorney may be able to help protect your rights and prevent you from incriminating yourself by handling all conversations with law enforcement.
Do I Need a Lawyer if I am Being Accused of Child Molestation?
If you are being accused of lewd acts with a child, you should contact an experienced sex crimes attorney immediately. Do not wait until charges are filed against you. Hiring an attorney before charges are filed can be beneficial to you.
Your sex crimes lawyer can speak to the police and prevent you from ever speaking to them. The worst thing you can do in any child molestation case is to speak to anyone in law enforcement. Your lawyer can review the facts of the case and may be able to convince the district attorney to file a lesser charge or drop the charges completely. If charges are formally filed against you, your attorney can help you defend against these allegations.
A conviction of lewd acts with a minor under 14 could destroy your life. But it doesn’t have to. Our attorneys at Wallin & Klarich have more than 35 years of experience successfully defending our clients accused of child molestation. We’ve helped thousands of clients in their time of legal need, and we can help you now.
We have offices located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, West Covina and Victorville, and our attorneys can help you with serious sex crimes charges throughout the state of California. Our lawyers have the experience and knowledge necessary to help you obtain the best possible result in your case.
Call our office at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
The Law Offices of Wallin and Klarich provide expert legal representation to those who reside in or have a case pending in (but not limited to) Southern California. If you live in or have a case pending in a location outside of the Southern California area we can refer you to our trusted defense attorneys which have tremendous experience within that area. We currently hold offices in the following counties: Orange County, Los Angeles, Riverside, San Diego, San Bernardino, Riverside and Ventura.
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