Lewd Acts with a Child
Children are considered vulnerable members of society. Therefore, the state takes any crimes directed to minors very seriously. Such crimes include lewd acts with a child, child molestation, and other sex crimes whose victims are minors. The LA Criminal Defense Attorney Law Firm has extensive years of experience in offering criminal defense services to clients charged with lewd acts with a child and other criminal offenses in Los Angeles, California. In this article, we delve deep into the elements of lewd acts with a child, its consequences and possible defenses if you are charged, and how you can contact our Los Angeles criminal defense attorney for legal help.
What is a Lewd Act?
Lewd acts with a minor are forms of child molestation defined under section 288 as indecent and sexual behavior directed to a minor. These acts involve the inappropriate sexual touching of a minor under the age of 14 years with the intention of arousing, appealing to or gratifying the sexual desire of oneself or that of the child. Some of the lewd acts under the law include touching a child’s anus or genitals, fondling a young girl’s breasts, kissing a child on the lips or on the body, watching a child undress, undressing in their presence, and oral copulation with a minor.
Criminal Elements of Lewd Acts With a Child
A prosecutor must prove that the defendant committed several elements relating to lewd acts for the defendant to be possibly convicted. These elements include:
Under section 288 (a), the defendant must have willfully and lewdly touched any part of a minor or willfully allowed the child to touch any part of their body. A willful act has a specific intention and purpose to it. In this case, accidental acts don’t constitute lewd acts under section 288 of the penal code
Touched a Part of the Child’s Body
The act of touching is imperative. Touching the bare skin of the child or even through the child’s clothing, or allowing the child to touch your bare skin or through your clothing can be sufficient element that a lewd act was committed. Actual arousal does not need to occur as long as the defendant intended to arouse themselves or the child.
Intention to Sexually Arouse Yourself or the Child
The lewd act must be done with the sole purpose of arousing, appealing to or even gratifying the lust or sexual desires of the defendant or that of the child. The prosecutor must, therefore, prove that the act had the intention of sexual effect. As earlier indicated, the actual arousal does not need to occur as long as the defendant had the intention to arouse the child or themselves.
The Minor was under the Age of 14 Years at the Time of the Act
The law provides that a lewd act must be committed against a child who is under the age of 14 years. The prosecutor must, therefore, prove that at the time of the act, the child was 13 years or below 13 years.
Other Forms of Lewd Acts
Since lewd acts are considered an offense of child molestation, there are other acts under section 288 of the penal code that amount to child molestation.
Lewd Acts with a Minor Using Force, Duress, Violence or Fear
Section 288 (b) of the penal code incriminates lewd acts with a child using force, violence, duress, menace or fear. Some of the acts of violence include hitting a child to incapacitate them, restricting the child’s defense capability, or threatening the minor. If the child is reasonably afraid of the defendant who goes ahead to molest them, then the act of fear is accomplished.
On the other hand, duress occurs if the defendant uses forms of intimidation to cause the victim to submit to the demands of the abuser. The act of duress comes in play under certain circumstances. They include the child’s age, their relationship to the defendant, and the location of the offense.
Continuous Sexual Abuse of a Child
Section 288.5 covers continuous sexual abuse to minors regulations. If a person severally commits lewd acts with a minor, then they are guilty under this law. However, continuous sexual abuse must occur more than three times within a period of three months. For one to be convicted, the prosecutor must prove that the defendant lived in the same home as the victim, hence easing accessibility. Additionally, the victim must be 14 years and below.
Lewd Acts with a 14 or 15 Years Old child
Section 288 (c) of the penal code criminalizes the lewd acts on a minor who is 14 or 15 years of age. Under this law, it is illegal to have some sexual affiliation with a child of this age bracket. Additionally, if at the time of the offense the defendant was 10 years older than the minor, then they will be charged with committing lewd acts with a minor.
Caretakers’ Lewd Acts upon Dependent Individuals
In addition to children or minors, the law also protects dependents of the minors. A dependent is any person who is physically or mentally impaired, which restricts them from carrying out their daily activities. Such people operate under the watch of caretakers. According to the law, a caretaker is considered to be the owner, operator, employee, administrator, independent contractor or volunteer of a public or private facility. A good example of such a lewd act is the act by a nurse against a patient in a hospital, or a foster parent against a child who has been placed under their care.
Penalties and Punishments for Lewd Acts with a Child
The penalties depend on the circumstances of the case and the section code that you are charged with. The penalties meted out depends on the age of the child, the criminal history of the defendant and whether the defendant used force or fear on the minor during the lewd act.
Penalties under Section 288 (a) of the Penal Code; Lewd Acts with a Minor Under 14 Years
This is considered a felony offense under the laws of California. If you are found guilty, you face up to 8 years imprisonment or a fine of up to $10,000. If a defendant is convicted with more than one charge of lewd acts, then they face a life imprisonment sentence.
Penalties under Section 288 (b) (1); Lewd Acts with the Use of Force
This is also a felony offense and if you are found guilty, you could be sentenced to 10 years in prison for each count. This means that you will be convicted under section 288 (a) as well as section 288(b) (1) of the penal code. The prison sentence runs consecutively and not concurrently.
Penalties under Section 288 (c) (1); Lewd Acts with a Minor 14 or 15 Years
Lewd acts with a minor of 14 or 15 years is a form of a wobbler crime, making it is either a felony or a misdemeanor. If you are charged with a misdemeanor, you face up to one year in jail. While as a felony, the sentence is three years.
Penalties for Lewd Acts against a Minor of 16 or 17 Years
If a minor is 16 or 17 years, or the defendant exceeds the minor’s age by over 10 years, then the case is treated as statutory rape. Rape offenses carry some of the heftiest punishments on the defendant. Alongside civil fines that could go to up to $25,000, the defendant’s reputation could be on the edge and they could face additional charges such as PC 261 rape. The defendant could also face PC 243.4 sexual battery charges.
Sentencing Enhancements; Sections 667.61 (c), 1203.066, and 1170 (h) of the Penal Code
These are crimes added to a charge to enhance the sentencing of the crimes under sections 288 (a) and section 288 (b). They include kidnapping to commit a sexual offense, multiple victims allegations, an injury suffered by a minor during the act of child molestation, and failing to adhere to the rules of probation or a suspended sentence.
Collateral Penalties of Lewd Acts with a Child
The offense of lewd act with a child is considered a crime of moral turpitude. Hence, a person is not only sentenced but also slapped with extra restrictions. The following are some of the other consequences:
- Immigration Consequences. In case a non-resident is convicted of the lewd act under section 288, then he/she risks losing their citizenship and can be immediately deported from the country. Additionally, they may be denied re-entry, but this depends on the intensity of the charges and their criminal record;
- Victim Restitution. As earlier alluded, lewd acts with a child not only have health implications on the victim but also cause a lot of emotional distress and stigmatization. In this case, the defendant is may be required to pay all the medical bills, psychiatrist charges incurred and also compensate the victim accordingly;
- Loss of Professional License. Most careers require one to have a professional license for operation. If you are a doctor, for instance, you must be vetted before being licensed to operate in the country. The license is prone to a dismissal, especially if you violate the law. It is no different when it comes to lewd acts with a child; if you are found guilty of the crime under section 288 of the penal code, then your professional license may be suspended;
- Right to Own a Firearm. If you are found guilty of an offense, the government may not trust you with a firearm, hence, the withdrawal of the firearm;
- Duty to register as a Sexual Offender. A conviction under section 288 of the penal code will require the defendant to register as a lifetime sexual offender under section 290 of the penal code. If convicted under sections 288 (b) and section 288 (c) of the penal code, which are both considered as tier 3 offenses, then the defendant will be required to register as a lifetime sex offender. However, if convicted under section 288 (a) of the penal code, which is a tier 2 offense, the defendant must register for at least 20 years as a sex offender. Registering as a sexual offender means that the personal details of the defendant including their picture shall be available to the public. This may lead to stigmatization, making it difficult for the defendant to secure jobs and other public benefits.
Defenses to the Lewd Acts with a Child Charge
Owing to the seriousness of these charges, the penalties to it are also very severe, and hence, the defense must be well prepared and argued out for a possible acquittal. Some of the defenses include:
As discussed earlier, the touch should be intentional to arouse either the defendant or the victim. However, if you can prove that the touch was accidental, then your case may be dismissed based on lack of proof that the touch was intentional. Such a scenario would occur if, for example, you are playing with your minor daughter and accidentally touch her breast, which could be misinterpreted by another person as a lewd act when it wasn’t intentional in the real sense.
Intentional Touch with no Intentions of Arousal
You may touch a child but you did not intend to arouse them, for example, rubbing your daughter’s back whenever the daughter has a panic attack. In this case, the touch is intentional but it is not meant to arouse the child.
The Defendant Did Not Touch the Child
For a lewd act with a minor charge, the defendant must have actually touched the child. A case where the victim either makes false accusations or does not actually remember being touched by the defendant cannot be a valid argument that the defendant is guilty. For example, in a playground where the victim is busy playing with other children and then someone touches the victim, the victim might not be sure about who exactly touched them. The victim cannot, therefore, claim that the defendant touched him/her just because the defendant was present at the park while the victim was playing.
The minor did not fit the age bracket is one of the most viable defenses. The law is clear that for one to be charged with a lewd act under section 288 (a), then the child must be 14 years and under at the time of the alleged act. If the defense can prove that at the time of the alleged act, the minor was above 14 years, then the lewd act charges would be invalidated, but the defendant may still face other charges such as statutory rape if there was sexual penetration.
The accused can deny having committed the lewd act by showing that at the time of the alleged act, they did not have access to the minor or they were nowhere near the minor. The defendant can, therefore, have a credible alibi to corroborate their case. Eyewitnesses and credit card transactions can be some of the alibis the defendant may use.
The Prosecutor Didn’t Observe the Statute of Limitations
Like all other cases, there is a time limit under the law that lewd acts with a child have to be filed. If the defendant is accused of a lewd act under section 288 (a) as a misdemeanor, they must be charged within a year of the alleged incident. If the defendant is accused under section 288 (a) for a felony, then the statute of limitations can extend to up to the victim’s 28th birthday.
The following arguments cannot be admitted in court by as defenses for lewd acts with a child charges.
A Mistake of the Minor’s Age
That the defendant thought the minor looked older than their age is not a defense no matter how reasonable that belief might be. However, the defense might be applicable for statutory rape charges. Having sexual intercourse with someone who is under the age of 18 is considered a criminal offense of statutory rape under the law. If, for example, the defendant has sex with a 17-year-old girl, but by physical looks or belief, the girl looked like an over-eighteen, then the defendant might use this defense for such an allegation. In some cases, the girl might have lied their age to the defendant and this is enough proof of innocence for the defendant.
Consent of the Minor to the Touching
The defendant cannot claim that the minor consented to the touch. The law considers the fact that a minor cannot legally consent to have sex. Even if the child wanted the defendant to have sex with them, it is still not a defense. The defendant who is an adult is considered to be a person who should make a better judgment on behalf of the child.
Offenses Related to Lewd Acts with a Child
The following are examples of crimes that are related to lewd acts with a child:
- Sending Harmful Information to seduce a minor: A person who sends erotic information to a minor with the intent of arousing the minor or themselves is guilty under section 288.2 of the penal code;
- Contacting a Minor to Commit a Felony: Section 288.3 of the penal code criminalizes the act of contacting a minor with the intention to commit a sexual offense with the minor;
- Arranging Meeting with a Child for Lewd Purposes: Where a person arranges a meeting with a minor with the intention of committing a sexual offense, the person is guilty under section 288.4 of the penal code;
- Sex with a Child Under 10: It is an offense to engage in a sexual act with a minor under the age of 10 years as provided under section 288.7;
- Continuous Sexual Abuse: Engaging in three or more times in a lewd act with a minor over a period of three months or longer is an offense under section 288.5 of the penal code;
- Child Pornography: A person in possession of materials that depicts sexual activity of a child or materials of a naked child is guilty of an offense of child pornography under section 311 of the penal code. It is also prohibited to show a minor such material in order to have them engage in a lewd act;
- Kidnapping: It is an offense to lure or persuade a minor to accompany you to a certain location in order to have them commit a lewd act with you. The kidnapping can be through luring or by force but provided you convinced them to come along, this would be enough evidence to incriminate you;
- Oral Copulation with a Minor: A person who participates in oral sex with a minor under the age of 18 years is guilty of oral copulation under the penal code. Oral sex involves touching the anus or genitals of a child or having the minor to touch your genital organs with the intention of arousal;
- Sexual Battery: Under penal code 243.4, it is an offense to touch a person of familial relationship with the intention of sexual arousal or gratification;
- Molesting a Child under 18 Years: If a person engages in a behavior that is motivated by sexual interest towards a minor under 18 years of age, and that conduct tends to irritate or annoy the minor, then that person would be guilty under section 647.6 of the penal code.