Your future might be at stake if you are facing child molestation charges. Your loved ones may also judge you severely even after the accusations are dismissed. Don't wait to see what happens or speak with investigators or the police before consulting a reputable criminal defense lawyer. The LA Criminal Defense Attorney is committed to offering you the best legal representation for any sex crime charges. We represent thousands of clients annually in Los Angeles; hence, we understand what you are going through. We will protect your rights at all stages of the case, aim for a plea agreement to get less severe charges as well as seek a case dismissal.
What is Child Molestation?
According to Penal Code section 647.6, child molestation happens when a person older than 18 years touches a minor anywhere in their body with an aim to be aroused sexually or to annoy the child. With respect to this law, the terms annoy and molest refer to the same thing. They describe conduct that is motivated or inspired by a sexual interest in the minor or generally in children as well as which disturbs or irritates when observed by the child.
The offender does not need to touch the child's genital area for it to be considered child molestation. It also involves directing sexual language towards a child. It doesn't matter whether the adult's behavior or language was done with the child's consent or not.
Actions considered molesting a minor include:
- Videotaping a child below 18 years in the washroom
- Sending explicit messages through social media platforms or text to a teenager
- Fondling a minor in your home with their permission
- Kissing a minor in an apartment whether with or without their permission
- Touching a child's breast in a store without their consent
Elements of Child Molestation
If accused of molesting/annoying a child, the prosecutor must present the following elements in the trial:
- The defendant engaged in conduct that was directed to the minor
- A normal person would be disturbed, offended, injured or irritated by the sexual behavior
- The conduct towards the minor was motivated/inspired by a sexual interest in the minor
- When the incidence happened, the victim was below 18 years of age
Legal Definition of Key Terms Under Penal Code 647.6 PC
- Conduct likely to Injure, Irritate or Disturb the Minor
The conduct that is illegal under child molestation law is one that is not only driven by the sexual interest in the minor or minors but also invades the minor's security and privacy.
Child molestation law is a wide-ranging intent offense. That means you don't have to plan your actions to be obscene or lewd. Sometimes behavior considered affectionate may break the law provided it would easily get on a normal person's nerves.
If the behavior would disturb a normal human being and invades the minor's security and privacy, it violates the law, even if the child did not get irritated by it.
Moreover, indirect sexual conduct like masturbation may violate the law since it is purposed to be seen by children.
- Motivated by Sexual Interest
Child molestation law applies only to an offender driven by an abnormal or unnatural sexual intent in the child or generally in children. If your behavior was inspired by something else, then it doesn't break the law. A good example is an action that was accidentally heard or observed by the child.
Sexual intent can be verified by proof surrounding your conduct or previous actions towards a minor that was your lover.
Typically, this element is very hard to prove hence, a common weakness in a prosecution that an experienced criminal defense lawyer can take advantage of.
For the purposes of Penal Code 647.6 PC, a minor is any person below 18 years. It is also worth noting that you can still be found guilty of violating Penal Code 647.6 PC if you believed your victim was below 18 years, even though it turned out they were already an adult.
Legal Defense Against California Child Molestation Charges
The good thing about Penal Code section 647.6 is the fact that defense depends mainly on the state of affairs. Every case is unique. Some of the ways your lawyer can assist you to fight these charges include:
- Attacking the trustworthiness of the main witness or the accuser
A child molestation charge will always depend on the trustworthiness and validity of the main witness. An experienced lawyer will consequently want to:
- Summon the alleged victim's records like medical records, school counseling, social media platforms, and email
- Conduct a circumstantial check on the victim and key witnesses
- Interview the victim's family members, friends, and schoolmates
The records may help to disclose the child with a past of telling lies or has a prior prejudice against the defendant.
Example: Diana accuses her neighbor of videotaping her while in the toilet. When her records in school are summoned, it is discovered that she had previously made related allegations about her language teacher. Because it seems Diana has a past of accusing men videotaping her in the washroom, the court may not believe her testimony and may not convict her neighbor of the accusation.
- Your conduct wasn't driven by abnormal or unnatural interest in a Child
For you to be convicted of molesting or annoying a minor, your behavior must be inspired by an unnatural interest in the victim. Sometimes, a teenager can accuse a blameless individual of molesting them for actions that did not have a sexual interest in the teenager.
For instance: You're walking down the street when a teenage girl falls while running. You assist the minor get up, but you mistakenly touch her buttocks. Being taught that any touching particularly from an unfamiliar person is wrong, she calls the police and you are arrested for molesting her. Even though your conduct could be well thought as offensive, it was driven by kindheartedness rather than sexual interest and consequently, you can't be sentenced for annoying the child.
- Your conduct wouldn’t disturb, injure or irritate a normal human being
Your conduct should disturb, injure or irritate any person in the alleged victim's position. As this element is an objective standard, you don't need to offend or irritate the victim personally for you to be convicted of this crime.
On the contrary, if the alleged victim is a reasonable or hypersensitive person, a normal person in their capacity will not be irritated by your behavior. Your attorney should then argue the objective standard hasn't been met. Also, minors have a tendency of exaggerating actions that wouldn't offend a normal person. As a result, your lawyer can carry out an investigation of the child's history.
- Private defense polygraph examinations
A polygraph examination is also known as a lie detector test and is linked with law enforcers. But your lawyers may request to conduct private lie detector tests that are done by a police polygrapher with reputable integrity or a former FBI agent. This helps keep the results confidential unless the defendant dies.
If the defendant is not lying, the results are taken to the court. Although polygraph is prohibited in the court, it is a good way to convince the prosecution team to dismiss the case. After all, no district attorney wants to put an innocent person in jail.
Then again, if the result reveals the defendant is lying, an experienced criminal defense attorney will shred the evidence. No person will ever know the lie detector test was conducted.
Why consent is not a defense for child molestation charges
As discussed earlier, even if the minor consented to your actions, this is not a defense to child molestation charges. Under California law, any person below 18 years is not in a position to give valid consent. This is because they don't understand the circumstances and risks related to the decision.
Penalties for Violating California Penal Code Section 647.6
- Misdemeanor charges
The absence of factors that increases the culpability or severity of molesting or annoying a child below 18 years (aggravating circumstances) makes a child molestation charge a misdemeanor. It carries a maximum fine of $ 5,000 or a one-year county jail sentence.
- Wobbler violations
Child molestation is a wobbler when you molest/annoy a minor after entering an inhabited home or an occupied room of another building without their consent. The court will put into account numerous factors before determining whether to punish the offense as a felony or a misdemeanor. Some of these factors include the court's decision on whether you're a threat to children in general and your criminal history.
If you receive a misdemeanor charge, you are subjected to a one-year county jail sentence and a maximum fine of $ 5,000. A felony conviction attracts a California state prison sentence of sixteen months, two years or three years.
- Felony violation
Child molestation is considered a felony as long as you were convicted of child molestation before. A subsequent child molestation conviction carries a maximum of three (3) years in state prison.
Moreover, any defilement of child molestation law (even if it is the first time) is considered as a felony provided you were previously convicted for a felony for committing related sex offenses like:
- California Penal Code 261, rape of a child or statutory rape,
- California Penal Code section 311.4, minor pornography, and
- California Penal Code 288, lewd behavior with a minor.
If you were previously sentenced for a felony for any of the above-listed sex crimes, violation of thee child molestation law attracts a two (2), four (4), or six (6) years sentence in a California state prison.
- Probation instead of prison or jail time
Instead of serving a term in jail or prison, the court may order probation. This mainly happens if the judge thinks you are a threat to children. Other factors considered include your criminal history and the circumstances surrounding the case. There are 2 categories that match with the type of your charges:
- Misdemeanor (summary or informal) probation
Misdemeanor probation usually lasts for one to three years. Typically, it involves carrying out community service and paying fines. You are also obligated to make frequent progress reports to the court.
- Felony probation
Felony probation lasts for three (3) to five (5) years. You are supposed to:
- Report frequently to the probation officer,
- Compensate the victim,
- Act in accordance with other terms and conditions enacted by the probation officer and the judge.
Felony probation could include a maximum of one year in county jail instead of prison. Violating the terms and conditions imposed on felony probation could lead to imprisonment in the state prison.
In addition, the court will require you to attend mandatory counseling sessions irrespective of the type of probation granted.
If restricted by a court order from getting in touch with the minor, this order can't be amended except:
- Upon a request by the minor, or
- A realization by the judge that amending the order is in the best interest of the victim.
Sex Offender Registration
According to Penal Code 290, you are supposed to register as a sex offender if you're accused of some types of sex crimes. The registration applies only to any person working, living or studying in California, whether they were sentenced for the sex offenses outside California or not. In case you have a previous sex conviction outside California, the offense must fall within the requirements of California Penal Code 290 for you to register.
The new Senate Bill 384 will change sex registration requirements starting from January 2021. This will allow a certain type of sex defendants to be removed from the sex registry. Sex offenses that call for registration will be three-tiered forms that define registration requirements.
This is the least level of requirement for sex crimes like indecent exposure, misdemeanor sexual battery, and assault. These offenders should register for ten years.
This category takes in mid-level crimes like non-forced sex offenses with a minor and lewd act with a person under 18 years. The offenders should register for twenty years.
Tier three carries the sternest requirements and compulsory registration. It involves sexual offenses with sex trade involving minors and sex offenses against minors below 10 years.
The main purpose of sex registration requirement is keeping law enforcers in touch with your residence as well as allowing community members to identify you in case they are looking for sex offenders in their area.
Possible sex registration requirements that you should comply with include (not limited to):
- Registering personally with the police five days after you have been released from prison or jail, or five (5) days after your sentencing in an event you didn't serve jail time
- Reporting five days after moving
- In case, you become homeless, you should report to the police every thirty days
- In case you enrolled or got employed in a college in the state, you must also register with the region’s police five days after enrolling or leaving the institution.
Failure to register is an offense. It can be either a felony or a misdemeanor depending primarily on the crime which you were originally convicted of.
The stigma associated with being a registered sex offender is not something to take lightly, particularly if your name is on the Megan's Law Website. Well, all is not lost. You could be relieved of the obligation to register if you obtain a Certificate of Rehabilitation or a Governor's Pardon under Penal Code 290.5.
Related Charges to Child Molestation
There are a number of sex crimes that are charged alongside Penal Code 647.5 or as lesser charges in terms of penalties. They include:
- Sending Content with an Aim of Seducing a Child (Penal Code Section 288.2)
Like child molestation law, California Penal Code section 288.2 violations are driven by sexual interests. Nonetheless, a violation of this law also requires the intent of seducing a child below 18 years, which could entail sending harmful or pornographic content.
Violation of this law is considered a wobbler. A misdemeanor charge is punishable as follows:
- Summary probation
- A fine of up to $1,000
- A maximum of six (6) months in county jail
A felony charge carries:
- Formal probation
- Sixteen months, two (2) or three (3) years sentence in state prison
- A fine of $ 10,000
- A life responsibility to register as a sex offender in accordance with Penal Code section 290 PC
- California Penal Code section 288.3 PC
In order to violate contacting a child below 18 years with an intention to commit a felony law, you must contact a child below 18 years with the intent to engage them in kidnapping, lewd act, child pornography, rape, among other specified felony crimes. Violating this law doesn't require you to commit a specified crime. You can break the law by making an attempt to contact or by contacting the minor.
Violating PC 288.3 carries a sentence in state prison equivalent to the sentence that should be served for attempting to commit the felony offense. Consecutive violation attracts an additional five years term in California state prison.
- Penal Code section 288 PC (Lewd Act with a Child under 18)
Under lewd act with a child under 18 law, it is illegal to deliberately touch a minor with an intention to arouse (sexually) yourself or the victim. It goes beyond touching the minor with and on an inmate part. Any form of touch whether through the minor's clothing or yours counts.
A perfect example would be Peter babysitting his 10-year old niece. While babysitting, he takes the girl into his bedroom and begins kissing her feet and arms. This causes Peter to get aroused. The girl then tells her mother what happened including details regarding her uncle's arousal. The mother calls the law enforcement officers who arrest Peter for Violating Penal Code 288 PC.
Penalties for violating Penal Code section 288 vary depending mainly on whether threats or force was used as well as the minor's age. The sentence could be probation, one year term in a county jail or ten years sentence in California state prison. Also, if you were previously convicted with a related offense, your prison term could be raised to twenty-five years or life.
- Penal Code section 288.7 (Sex with a Child below 10 Years)
Any person above 18 years who participates in an act (sexual) with a child under 10 breaks Penal Code section 288.7. It is considered a felony and is punishable by 25 years or life imprisonment in state prison for sodomy or sexual intercourse and a fifteen years or life imprisonment for oral copulation.
- Penal Code 288 (a) (Oral Copulation with a Person under 18)
Under PC 288(a), it is a crime to engage in an oral sex act with a minor. Possible penalties depend on the child's age, the age difference of the perpetrator and the victim, and whether the sexual act was achieved by threat, force, and menace.
If the child is below 14 years, the charge is always a felony. A felony defilement of Penal Code 288(a) carries a sentence that is between three (3) years and twelve (12) years in prison.
- Penal Code section 243.4 PC (Sexual Battery)
Under Penal Code section 243.4 PC (sexual battery law), it is a crime to touch any intimate organs of another person for abuse, sexual arousal or gratification. The main difference between sexual battery laws and child molestation is that Penal Code 243.4 PC does not take the victim's age in consideration. Consequently, it is the charge filed if:
- The child is either sixteen or seventeen
- The child is fourteen or fifteen but not more than 10 years younger than the accused
Sexual battery is a wobbler and can be filed either as a felony or a misdemeanor. If convicted with a misdemeanor, you should register as a sex offender in California for ten years while a felony charge carries the obligation to register as a sex offender in California for life.