Unlike sex offenses involving one’s self or another adult, sex-related offenses committed upon a minor, especially those under the age of 14 years, are treated very seriously. Those offenses that also include use of force, or threat of force, and result in injury to the minor are treated even more severely. The lengthy list of lewd conduct offenses are generally covered under Penal Code section 288. A few of these types of offenses are discussed below.
Pursuant to Penal Code section 288(a), someone commits a lewd act with a minor when: he/she
- willfully touches any part of a minor’s body or causes minor to touch defendant’s body
- the minor is under 14 years of age
- does so with intent of arousing/gratifying the lust of defendant, the minor, or someone else
Unlawful Touching
The touching need not be the minor’s or the defendant’s genitals. The unlawful touching can occur over “clothing” and remains unlawful if the defendant orders the minor to “touch a third party”. For example, when the defendant:
- rubs minor’s stomach
- fondles minor’s breast under bra
- grabs minor’s buttocks through her pants
- tells minor to touch another minor’s crotch
Lustful Intent
Importantly, to establish or prove the defendant’s lustful intent, a prosecutor will consider a variety of factors:
- how the touching occurred
- the context in which it occurred
- the relationship between the defendant and the minor
- defendant’s prior history, especially any sex-related offenses
No one factor mentioned above is more important than another. The factors that may apply in a given case, will be considered by the prosecutor in their totality. And just as a prosecutor will evaluate all aspects of a sex-related offense, an experienced and knowledgeable defense attorney will go through a similar process to develop and identify possible defenses.
Defenses
In any lewd conduct investigation, the minor and any witnesses will likely have been interviewed by law enforcement and the prosecutor to gain a clear picture of what happened during the event. Usually, a defendant will also have provided a statement to law enforcement (usually before he/she has hired counsel!). The information and evidence obtained through these interviews are invaluable to developing and identifying possible defenses. The big distinction is that an adult is better equipped and able to understand the nuances of the interviews – adults can “process” a question, whereas a minor-child may not be able to do so as well, and is susceptible to the influences of the interviewer.
How that initial, and any subsequent, interview with the minor is conducted is crucial to the accuracy and integrity of the information elicited from the minor. For example, was the minor made to feel mentally comfortable during the interview or did he/she appear afraid, were the questions posed to the minor done appropriately or were they “leading” (designed to get a specific response), were the people guiding the minor’s interview specially trained, or not, in such matters, and, were there any discrepancies or contradictions in anything the minor said in the initial police report versus subsequent interviews.
In cases where physical evidence is obtained and/or available (DNA, clothing, photos, video or audio recordings, etc.), it is important to determine if the items were properly collected, stored and analyzed. Any flaws or defects in the preparation or evaluation of physical evidence can have significant impact on the quality and admissibility of that evidence.
Based on a consideration of the statements obtained from all parties (including attorney discussions with the client), as well as any physical evidence (or lack thereof) that exists, the attorney may be able to demonstrate that:
- the minor was untruthful about the events as to what happened or as to whom was responsible
- the minor was mistaken as to what happened or as to whom was responsible
- the contact was “accidental”
- there was no lustful intent involved
Using the same scenarios in the discussion of “Unlawful Touching” above, consider these situations:
- the defendant was rubbing minor’s stomach because minor was complaining of stomach pain and defendant was trying “to identify where it actually hurt”
- the female clerk was actually trying ‘to help an inexperienced minor adjust a new bra, but accidentally pushed into the side of her breast”
- the man was using his hands on the minor’s buttocks “to help the minor climb over a large fence” and there was no lustful intent
The point to be made is that a minor is impressionable and immature emotionally. A reasonable and valid non-criminal explanation may exist for how and why the physical contact with the minor took place. Thus, “context” is particularly important and must be emphasized and discussed with the prosecutor. The results of such a conversation may affect not only the potential punishment, but moreover, whether the client should even be held criminally responsible.
Aggravating Factors, Punishment & Sex Registration
Victim under 14 years of age – (Penal Code section 288(a))
Although a prosecutor has the discretion to file a misdemeanor for a first-time offender of a lewd act with a minor, he/she will usually charge the defendant with a felony due to the sensitive nature of the offense and the young age of the victim. If so, the defendant’s punishment can include being placed on formal probation and serving up to one year of custody in the county jail, sex counselling, plus fines/fees and restitution to the victim. If probation is denied, the defendant may serve 3 years, 6 years, or 8 years of custody in state prison.
If the charge is filed as a misdemeanor, the custody can include up to one year of custody in county jail, sex counselling, fines/fines and restitution to the victim.
Victim under 14 years of age with use of force – Penal Code section 288(b)(1)
Certain aggravating factors can increase the above punishment, if the defendant uses force, violence, threats (duress), or menace to commit the act. For example: when the defendant
- holds the victim down while removing victim’s pants
- chokes the victim while rubbing her vagina
- tells the victim he’s going to hurt the victim’s dog if the victim doesn’t comply
Lewd conduct involving an aggravating factor can only be filed as a felony. If convicted, the defendant may serve 5 years, 8 years, or 10 years of custody in state prison. Additionally, if the defendant inflicts injury on the victim, then depending upon the age of the victim, the defendant may serve an additional 5 years in state prison and up to life in prison (Penal Code section 288(i)).
Victim 14-15 years of age – Penal Code section 288(c)(1)
Although a prosecutor has the discretion to charge a first-time offender with a misdemeanor offense when the victim is 14 -15 years of age, he/she will usually charge the defendant with a felony due to the sensitive nature of the offense and the young age of the victim. If so, the defendant’s punishment can include being placed on formal probation and serving up to one year of custody in the county jail, sex counselling, plus fines/fees and restitution to the victim. If probation is denied, the defendant may serve 1 years, 2 years, or 3 years of custody in state prison.
If the charge is filed as a misdemeanor, the custody can include up to one year of custody in county jail, sex counselling, fines/fines and restitution to the victim.
Victim 16-17 years of age
Absent aggravating factors described above, a defendant’s conduct that otherwise constitutes a lewd act under the Penal Code sections mentioned above, will likely be filed under the sexual battery law (Penal Code section 243.4(a)). See Sexual Battery.
Finally, as of 2017 in California, a new three-tiered system (SB 384) exists for designating for how long a defendant is required to register as a sex offender. For lewd conduct with a minor, the registration requirement with local law enforcement is a lifetime obligation (Penal Code section 290). Failure to register can result in either a new misdemeanor or felony offense, punishable up to one year in county jail or 3 years in state prison.