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California Penal Code Section 288 is the statute that addresses lewd or lascivious acts with a child under 14 years of age.

This law prohibits any acts that are of a sexual nature or are indecent.

California’s age of consent is 18, so you can be convicted of a lewd act even if the child is an active participant in the encounter.

If you have been accused of committing lewd or lascivious acts with a child, you need an attorney’s help. The law is fairly complicated, and building a proper defense takes experience.

As mentioned above, simply arguing that the child was an active participant in any contact is not a defense that will work in these types of cases.

Please contact the team at the Law Offices of Kerry L. Armstrong, APLC today to schedule a confidential consultation so we can get to work right away on your case.

What Is a Lewd Act on a Child Under Penal Code 288(a)?

To obtain a conviction, the prosecution must do more than simply accuse you of behaving inappropriately around a child.

Instead, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  • The child was under the age of 14 at the time of the incident.
  • You touched any part of a child’s body willfully and lewdly, or you willfully and lewdly caused a child to touch another person’s body, including your own.
  • You committed the acts with the goal of arousing, gratifying or appealing to your sexual desires or the sexual desires of the child.

For example, accidentally bumping into a child is not a lewd act, since you did not commit it willfully.

A child lewdly touching you is also not a crime—so long as you did not willfully and lewdly encourage it.

However, adults and children often have conflicting memories about what happened, and the prosecutor will need to decide whom to believe.

Lewd and Lascivious Act Examples in California

Lewd and lascivious mean different things to different people. The following are some situations that would constitute lewd acts under California law if committed with the requisite intent:

  • John, a high school teacher, rubs a 12-year-old student’s inner thigh.
  • Sally made her 10-year-old grandson grope her breasts.

Every case is different. If you are facing allegations that you committed a sex crime, the Law Offices of Kelly L. Armstrong, APLC, is ready to defend your rights. 

Other Lewd Act Offenses Under the Statute

The statute has other subsections that criminalize other conduct and potentially award greater or lesser penalties:

  • PC 288(b) is similar to the section above but involves lewd or lascivious acts committed through fear, duress, violence, or force. A conviction under this section of the statute carries a greater punishment.
  • PC 288(c) involves lewd or lascivious acts with a child who is age 14 or 15 if the defendant is at least 10 years older than the minor. It carries a lighter sentence than PC 288(a).
  • PC 288.5 is like PC 288(a) but involves multiple incidents. If you committed 3 or more acts within a 3-month period, you can be charged with continuous sexual abuse of a child if you lived in the same home or had recurring access to the child.

Punishments for Committing Lewd or Lascivious Acts

California’s law provides for severe penalties for violations of the statute. Each case is different, and not all defendants will receive the same punishments.

However, some prosecutors will seek the maximum, depending on your criminal history:

  • PC 288(a). It is a felony to commit lewd or lascivious acts with a child under 14 years of age. A defendant can face 3, 6, or 8 years in prison and a $10,000 fine if convicted.
  • PC 288(b). Committing a lewd or lascivious act using force, duress, violence, or fear is a felony and carries a sentence of 5, 8, or 10 years and a $10,000 fine. A defendant is also ineligible for probation, so prison is unavoidable.
  • PC 288(c). Committing a lewd or lascivious act with a child who is 14 or 15 if you are 10 years or older than the minor, is a wobbler. It could be charged as either a misdemeanor or a felony. A misdemeanor can result in up to 364 days in jail, while a felony could send you to prison for 3 years.
  • PC 288.5. It is a felony to commit lewd or lascivious acts with a child under 14 years of age on repeated occasions. This section applies if you engage in lewd acts with a child under 14 years of age more than three times within a three-month period. Continuous sexual abuse of a child can net a defendant 6, 12, or 16 years in state prison.

A conviction under any of these sections can result in prison time. The length of time you spend in prison, if convicted, will depend on the individual circumstances in your case. Factors typically considered include:

  • Age of the child;
  • Whether the lewd act was committed through force, violence, duress, or threats; 
  • Whether a pattern of lewd acts existed;
  • Whether you have any prior convictions.  

There is no perfect strategy to defend against sex crimes allegations. We will take the time to investigate the charges against you and tailor a defense strategy specifically for your needs.

Registration as a Sex Offender

Previously, lifetime registration as a sex offender was required for conviction of any offense under Penal Code section 288.

California’s sex registration laws changed on January 1, 2021. Now, sex offenders are divided into three tiers based on the severity of their crime. The California sex offender registry tiers include:

  • Tier 1 offenders must register for a minimum of 10 years; 
  • Tier 2 offenders must register for a minimum of 20 years; and
  • Tier 3 offenders must register for their entire life. 

All California sex crimes are assigned a tier. Upon conviction for the individual crime, you are placed in the tier that corresponds with the crime you committed.

If you fail to register, you can face additional criminal charges and possibly spend up to 3 years in prison simply for failing to register.

With registration, you will need to update local law enforcement of your personal information.

Your personal information, such as name, address, and photographs, will also be posted to the public website.

Other than registering as a sex offender, there are other consequences associated with a conviction for committing lewd acts with a child. These consequences possibly include living only in a certain area or being allowed to congregate only among adults.  Contact an experienced sex crimes defense attorney for more details. 

How Long Does a Person Have to Stay on the Sex Registry List for Lewd or Indecent Acts with a Child? 

A first-time offender convicted under California Penal Code section 288 is placed in Tier 2. Tier 2 sex offenders are required to register for at least twenty years. An additional conviction under the same section mandates placement in Tier 3.

A first-time offender convicted under California Penal Code Section 288(b)(i) is placed in Tier 3.

If you are convicted of multiple sex crimes, you are assigned the highest tier applicable to your crimes.

For example, if you are convicted of first-degree rape and lewd acts with a child under 14, you are placed in Tier 3, even though the lewd acts charge alone would have landed you in Tier 2.

Lewd Acts with a Child Statute of Limitations

The statute of limitations sets a time limit on when charges can be filed against you for wrongs committed years earlier. 

For acts that allegedly occurred prior to January 1, 2017, the statute of limitations for lewd acts with a child is ten years after the alleged victim turns 18.

However, California allows a way around this timeline.

California law allows certain charges to be filed within one year of the crime being reported to authorities, regardless of when the crime allegedly occurred. 

For this exception to the statute of limitations to apply, two factors must exist:

  1. The crime must have involved substantial sexual conduct, and
  2. There must be independent evidence supporting the victim’s allegations. 

“Substantial sexual conduct” is defined as any sexual act with a minor that involves vaginal or anal penetration, oral sex acts, or masturbation.

Additionally, if the alleged victim is 21 years old or older at the time of reporting the misconduct, there must be “clear and convincing” independent evidence to prove the allegations. 

The clear and convincing standard requires proof that the allegation is more likely to be true than not true.

California passed a law to eliminate the statute of limitations for serious sex crimes, including lewd or lascivious acts with a minor, for crimes that are alleged to have occurred after January 1, 2017. This means there is now no time limit for the state to file charges for such crimes.

Questions About Lewd Act Laws in California?

At the Law Offices of Kerry L. Armstrong, APLC, we remind clients that an arrest or accusation is not a conviction. 

Many children make up stories to strike back at a teacher, coach, or parent. 

The law involving lewd acts with a child is complicated and constantly changing. As sex crime defense attorneys, we are committed to defending your rights and getting false charges dismissed.

It is vital that you find a trustworthy attorney who will advocate for you. We have many successful stories we want to share with you. 

Our attorneys have handled well over 100 trials and have decades of experience. Please contact us to schedule a free consultation.

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Kerry L. Armstrong

 

Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.