California Laws protect the rights of a child by enforcing strict measures against any action against them. One of the outstanding laws related to child abuse is the law against lewd acts with a minor. Anyone convicted with such a crime risks imprisonment, tainting of his or her reputation, fines, and other related penalties. If you are charged with such allegations, you should seek help from a professional Los Angeles Criminal Lawyer. Such a decision will help you avoid severe punishment or have the case dismissed by the court.
Legal Definition of Lewd Act with a Minor
Under Penal Code 288(a), lewd act with a minor is a lewd or lascivious action made on the body of a child under the age of fourteen to arouse or gratify your lust, the child, or another person.
You are considered to have committed a lascivious or lewd act when you willfully touch any part of the body of a child or cause a child to touch your body or the body of another person.
For a prosecutor to prosecute you under this penal code, he or she must consider several elements. These elements include:
You are considered to have committed something willfully if you do it on purpose. It does not necessarily have to be an action that one should break the law, harm another person, or gain any form of advantage to consider whether the action was on purpose. Therefore, any accidental action, despite being accidental, does not constitute as a lewd action under this penal code.
To violate this penal code, you must touch any part of the child’s body or make the child touch someone else. Under this penal code section, touching does not necessarily have to be on a sexual organ or skin. It can be on any part of the body, made on the bare skin, or through the clothes.
Besides that, actual arousal is not necessarily required. The main aspect of this is whether the touching was on purpose and was intended to satisfy the sexual desire or cause arousal.
Lewd Act Accomplished through Fear or Force: Penal Code 288(b)(1)
When a defendant uses force or fear to commit a lewd act on a child leads to more significant penalties. Under Penal Code 288(b)(1), the defendant is at risk of more considerable penalties if he or she accomplishes the lewd act through force, menace, violence, or coercion. The action is also performed if the defendant used threats that placed the child in fear of a possible bodily injury or someone else.
Here is a closer look at the legal definition of the elements that fall under Penal Code 288 (b) (1):
The force that is explained under Penal Code 288(b)(1) should be substantial or more considerable that the wrongful touch. In an example that a defendant slaps a victim to touch her private part, there is a force involved in the lewd action, compared to doing the raunchy act alone without prior actions.
A defendant can accomplish a lewd action through fear if the child is reasonably afraid or the child does not have any reasonable fear, and the defendant knows about this and takes advantage of the situation.
The totality of a circumstance considers duress. Such events include threats that would harm the victim, physical control, and warning the victim. When the jury is reviewing the situation surrounding a lewd act that was accomplished through compulsion, they must consider:
- The child’s age
- The relationship between the child and the defendant
- The difference of size between the defendant and victim, and
- The location where the interaction between the parties took place
Under California laws, a menace is defined as a statement, threat, or action that proves the intent to injure someone else.
Prosecutor’s Proof of Sexual Intent
Intent stands to be one of the most challenging aspects that one has to prove in a court. The jury should take account of all circumstances to prove that a defendant acted with the required extent of intent. Some of the factors that the jury might consider are:
- The setting which the touching took place
- Whether the alleged victim or defendant knew each other
- The lack of an innocent explanation
- The nature of the touching
Police Investigation Process in a Lewd Act Allegation
In California, law enforcement agencies put a lot of resources and effort to investigate any sex crimes committed against children. In a typical case that involves sex crimes such as immoral actions with a minor, the investigating officer usually considers several factors. Here is an ideal procedure used in an investigation process of an indecent act with a minor.
Receiving of a Report about the Allegation
Every case begins with the reporting of alleged sexual abuse. In some cases, the child might contact the police directly or have the parent accuse the offender. Also, other authoritative adults such as a relative, a school counselor, or teacher might report the action to the police.
In some cases, the accuser might report the lewd act long after the allegation occurred. In such situations, the accuser might claim that he or she was too afraid to confess about the action, feared to get into trouble, or did not understand the nature of the action at that specific time.
Interview of the Accuser
The police officer will also be required to interview the accuser to get details about the lewd action. If the accuser is the victim (child), a child psychologist or a detective with experience and specialized training should handle the interview. If the interview was audio or videotaped, the parent to the child should be present.
An excellent interviewer will carefully persuade the child to speak openly, without being too suggestive to the extent of putting words on the child’s mouth.
Forensic Analysis and Medical Examination
The investigating officer might be required to undertake a medical examination and forensic analysis on the child. The investigation is particularly true if the lewd act is recent and is done through anal or vaginal penetration. The exam may include swab analysis of the child’s clothes or body and the alleged location of the action.
Besides that, the police might consider looking for DNA in the suspect’s, saliva, skin, hair, semen, and saliva. Also, a trained medical practitioner can identify injuries on the victim that explains a possible lewd action on the child. The wounds should be documented for reference during the trial. If there are no injuries identified, DNA can serve as evidence of any possible sexual action or penetration.
The Pretext Call
In some cases, the police might have the accuser stage a phone call to the alleged suspect. Without the knowledge of the suspect, the police officer will be recording the conversation, commonly known as a pretext call. The point of such a call is having suspects confess when the accuser is confronting the alleged perpetrator.
If a lewd action indeed occurred, the suspect becomes an actual pedophile, and there is a possibility of multiple victims. The police might go out and try to identify all the children who have fallen victim to the offender.
If other kids claim that some sort of such action occurred, this might significantly enhance the evidence that the prosecutor is building.
Interrogating the Suspect
Interrogation is a crucial part of convicting someone under Penal Code 288 investigation. If the suspect confesses, this will seal the case. The police officer might decide to interrogate the suspect out of custody or at the station or jail.
If the cops decide to interrogate the suspect out of custody, there is no need for reading the Miranda rights. The officer might show up in the suspect’s and employ a “good cop approach” to put the suspect at the ease of concealing his or her agenda.
If the officer decides to interrogate the suspect while in custody, they are obliged to read out the Miranda rights. Regardless of the situation that you are going through, you must not agree to go ahead with the interrogation without the presence of your attorney., even when you are factually innocent of the allegation.
The officer might trip you to find inconsistency in the story and introduce this in trial and claim that you are untruthful.
Finally, if the alleged victim denies involvement in sexual contact, the investigating officers might submit a polygraph examination. A polygrapher conducts this examination at the jail or station. The test is voluntary, and the officer cannot force one into undertaking it.
The evidence collected through this examination is inadmissible in court. However, if the suspect “passes” the test, this might convince the authorities that he or she is factually innocent and may have the charges dismissed. However, if one fails to pass the test, this might convince the prosecutor that the allegation is true and might prompt him or her to continue with the charges.
Penalties for Lewd Act with a Minor
As soon as you get a verdict of a lewd act with a minor, you will be subjected to various penalties. The punishment of indecent acts with a minor depends on the age of the child, whether you imposed force or threats, and your criminal history. Here is a closer look at the scenarios that lead to punishment under Penal Code 288.
A Scenario where no Force or Threat was Used on a Child Under 14 Years
If the victim is a child below the age of 14, violation of Penal Code 288 is considered a felony. If the suspect did not use any force, the prosecutor would charge one with Penal Code 288(a). The possible punishment under Penal Code 288(a) include:
- Imprisonment in the California state prison for 3,6 or 8 years
- A maximum fine of $10,000
The judge can grant probation in a county jail for a year. However, if you are not guaranteed a prison term, you will still face felony charges under Penal Code 288.
A Scenario Involving Force or Threat to a Minor Under 14 Years
As discussed earlier, a lewd act against a child that involves force, coercion, threat, and violence is charged under Penal Code 288(b)(1). The possible penalties that follow include imprisonment in the state prison for five, eight, or ten years and a maximum fine of $10,000.
Suspects that are charged under this penal code are not eligible for probation, and the court usually charges them to a prison term.
A Scenario where the Lewd Act Led to Bodily Harm on a Minor below the Age of 14 Years
Several statutes guarantee punishment for a lewd or lascivious action that led to the harm of the victim. These punishments are as follows:
- Twenty-five of to life imprisonment for inflicting bodily harm on a minor below the age of 14. This is provided under Penal Code 667.61(d)(7)
- Life imprisonment for inflicting physical harm on a child below the age of 14 years. This is provided under Penal Code 288(i)
- Five years of prison enhancement for inflicting significant bodily injury, as provided under Penal Code 12022.8
Please note, bodily injury and significant bodily injury are defined as substantial physical injury. However, great bodily injury means significant physical harm to the victim.
The prosecutor can use any of the above-stated punishment to prosecute the suspect. As a result, the defendant is at risk of getting additional imprisonment of five years to life imprisonment.
A Scenario Where the Child was 14 or 15 Years
If the suspect commits a lewd act against a child of the age of 14 or 15 and is at least ten years older, he or she will be charged under Penal Code 288(c)(1).
Violation of Penal Code 288(c)(1) is a wobbler, meaning that one can be charged with a misdemeanor or a felony. If one gets prosecuted with a misdemeanor, the possible penalties that apply include one year in county jail. Despite being a misdemeanor, one should register as a sex offender since it falls under Penal Code 288.
If the suspects get prosecuted with a felony, he or she risks possible imprisonment in the California state prison for 16 months, two years, or three years. One can also get felony probation, which includes one year in county jail.
A Scenario where the Minor was 16 or 17 Years
If the minor was 16 or 17 years at the time of the lewd act, one will not be charged under Penal Code 288, but will be charged under:
- Penal Code 261.5: California’s Statutory Rape Law
- Penal Code 243.4(a): California’s Sexual Battery Law
Subsequent Penal Code Conviction under Penal Code 288
Other than being prosecuted under PC 288, anyone facing subsequent crime conviction gets convicted under Penal Code 667.71(b), commonly referred to as habitual sexual offender law. As a habitual sex offender, one risks the sentencing of twenty-five years in the state prison.
Additional Consequences Under Penal Code 288 Conviction
Anyone who gets convicted under Penal Code 288 faces further consequences besides imprisonment and fine. The kind of further consequences that one might encounter include:
- Registration as a sex offender
- Restitution of the victim’s medical or psychological treatment
- Loss of your professional licenses such as medicine and law
Legal Defense Strategies for Lewd Act with a Minor Allegation
Although there are severe consequences for prosecution under Penal Code 288, there are chances of avoiding prosecution by disapproving of the evidence presented by the prosecutor. This can only be achieved through legal defenses.
Please note, having consent from the child does not count as a defense strategy. Under California, a child cannot consent to any sexual act, and any activity related to such action is considered as unlawful.
Apart from that, the following are several legal defense strategies that your attorney can adopt:
Claim that the Child is Lying
Most prosecution cases hang on the credibility of the statement provided by the child. This is true when there is no physical corroboration or confession. For your attorney to establish whether the child is truthful, he or she should:
- Interview the victim’s schoolmates, online friends, and family
- Do a thorough background check on the alleged witnesses and the accuser
Sometimes, a child might be touched inappropriately and get confused about the identity of the perpetrator. This is common when the touching takes place in an unfamiliar or dark place, the child is very young, and the child does not know about the defendant.
Your attorney should go through the circumstances surrounding the investigation to look for facts that undermine the child’s ability to identify the perpetrator.
For a prosecutor to accuse someone under Penal Code 288, one must prove that the touching was willful or the defendant willfully caused the child to touch him or herself, or another person. If your attorney shows that the touching was accidental, the defendant becomes innocent of the accusation.
You had no Intention of Arousing
Under Penal Code 288, it is prohibited to touch a child to arouse him or her. However, if the defendant did not achieve the arousal or gratify him or herself, one is innocent of the allegations.
Sometimes offenses against children are vigorous and occasionally over-vigorous. Therefore, sometimes the evidence collected by investigators is not done according to the rights of the defendant. In that case, the police officer violates PC 288 through:
- Illegal search and seizure
- Police misconduct such as planted evidence and false testimony
- Coerced confession
If your attorney can manage to prove these misconduct, the court will acquit you from your accusation or reduce your charges.
Find a Los Angeles Criminal Attorney Near Me
Accusation for lewd acts with a minor can significantly affect your life. That’s why it is recommended to seek professional legal services to avoid facing the full force of the law. Los Angeles Criminal Lawyer offers credible services to anyone facing such accusations within Los Angeles, CA. For more information about us, contact us at 310-502-1314 and speak to one of our attorneys.