Under California Law, it is a crime to willfully and lewdly commit any act upon or with the body of a child who is under the age of 14 years. Lewd conduct that involves another adult can be a misdemeanor or a felony, depending on the acts committed. If a person exposes his genitalia in public, or is involved in prostitution or pornography, it means he or she can be charged with lewd conduct.
Lewd conduct conviction is very serious and it can result in sever legal consequences as well as public judgment. The prosecutors go to the extreme measures to make a defendant be found guilty because of public pressure and moral values of the society. What can you do if you have been charged with lewd conduct? The essential to do is to find a zealous attorney who can defend your rights and give legal advice.
Below, we invite you to find out the main elements of the California Lewd action with a minor definition.
1. Lewd Action with a Minor in California
2. Legal Defenses to California Lewd Action with a Minor
3. Penalties for Lewd Action with a Minor in California
4. Related Offences
We are ready to provide answers to your initial questions concerning Lewd action and Lascivious charges in California for free.
1. Definition of a Lewd Action with a Minor in California
Under California Penal Code Section 288, any person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child is guilty of lewd action.
An act can be committed willfully if it has been done willingly or on purpose. It is not obligatorily to have the intent to break the law, hurt someone, or take any advantage.
It is essential to know that even the child gives his or her consent to the act, it cannot be considered as a defense.
In order to prove the guilt of the defendant, the prosecutor should prove the following elements of the crime:
1) The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing
The defendant willfully caused a child to touch (his/her) own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing
2) The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or herself or the child
3) The child was under the age of 14 years old at the time of the act. Under California law, a person becomes one year older as soon as the first minute of his or her birthday has begun.
The touching should not obligatorily be in a lewd or sexual manner. Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.
Persons convicted of lewd conduct with a minor must also register as a sex offender at the place of living, work and residence.
2. Which Defenses Can I Use Against California Lewd Action Accusation?
An experienced and professional California defense attorney can use various legal defenses in order to reduce or dismiss the Lewd Action. Below, we represent some of them.
- The child is lying;
- The child has misidentified the offender;
- The child is said to blame the defendant;
- The contact was not on purpose;
Note: Consent to the act given by a child cannot be estimated as a defense.
3. Which Penalties Can I Face If I am Convicted of a Lewd Action in California?
Lewd conduct involving minors is considered to be a felony offense. When the defendant is convicted of this crime, he or she will probably face jail time, fines, and other serious penalties.
In California, penalties for Lewd Action vary depending on the age of the victim.
<14 years :
- Incarceration up to three(3), six (6) or eight (8) years in state prison
- Up to one year in county jail and probation
In case of use of force, violence duress or threats while committing the crime, the prison time will increase up to 5, 8 or 10 years.
14-15 years :
If the convicted is at least 10 years older than the child, he or she will be punished by imprisonment in the state prison for one (1), two (2), or three (3) years, or by imprisonment in a county jail for not more than one (1) year.
From 16 up to 18 :
The case will be prosecuted as a “statutory rape” if a sexual intercourse took place. Otherwise, the act can be charged as sexual battery (touching the intimate part of another person).
Note: Lewd action with a child is considered to be a “strike” under California three strike laws. According to the California Three Strikes Law, any person who has been convicted of two or more prior strikes will be punished by a life term sentence if he or she commits a third felony. TSL imposes harsher sentences on offenders who are convicted of three or more violent crimes or serious felonies.
In addition, the court can impose other penalties on the convicted in order to guarantee the correction of the person. One of the potential penalties for the offender is compulsory psychological treatment programs, payment of special rehabilitation programs for the victim or confinement to a mental hospital.
In addition, the offender must register as sex offender for lifetime under Sex Offender Registration Act (endnote 10).
Have you faced accusations of Lewd and Lascivious conduct in California?
The Margarian Law Firm aggressively protects the rights of criminal defendants in California. Each defense will be developed upon the facts of your individual case. Do not hesitate to contact us. You will get your legal assistance as soon as you contact us. We handle every aspect of your case, from the first step to the very last court hearing.
You may file your request online, by telephone or by mail. 818-553-1000
California Penal Code 288 PC
288. (a)Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
(b)(1)Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
(2)Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
(c)(1)Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.
(2)Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.
(d)In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process.(e)Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837. If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.(f)For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the following definitions apply:(1)”Caretaker” means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons:(A)Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.(B)Clinics.(C)Home health agencies.(D)Adult day health care centers.(E)Secondary schools that serve dependent persons and postsecondary educational institutions that serve dependent persons or elders.(F)Sheltered workshops.(G)Camps.(H)Community care facilities, as defined by Section 1402 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.(I)Respite care facilities.(J)Foster homes.(K)Regional centers for persons with developmental disabilities.(L)A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code.(M)An agency that supplies in-home supportive services.(N)Board and care facilities.(O)Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code.(P)Private residences.(2)”Board and care facilities” means licensed or unlicensed facilities that provide assistance with one or more of the following activities:(A)Bathing.(B)Dressing.(C)Grooming.(D)Medication storage.(E)Medical dispensation.(F)Money management.(3)”Dependent person” means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. “Dependent person” includes any person who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.(g)Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c).(h)Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an equivalent domestic relationship with, the dependent person under care.