What is Lewd and Lascivious Acts with a Minor under Penal Code 288?
California law describes lewd and lascivious conduct as sexual acts that are considered to be offensive and contrary to common standards of behavior. The statute that covers this type of sex crime is found in California Penal Code 288, and a conviction could result in many years in prison and a mandatory requirement to register as a sex offender.
“Lewd and lascivious” is legal description for conduct regarding immoral sexual intent or behavior. It’s frequently used in the legal description of offenses where some type of sexual activity is prohibited.
The legal term “lewd and lascivious” typically refers to a crime which occurs when an adult has sexual contact with an underage child. A violation of PC 288(a) when the victim is under 14 years old is always a felony and a “strike” under California’s Three Strikes Law.
However, under California law, anyone involved in sexual activity with a person under the age of 18 may be prosecuted, including another minor. In California, minors can never legally consent to sexual activity.
Lewd and lascivious conduct is sexual conduct which appeals to the lust, passions, or sexual desires of either the defendant or the victim, or both. Lewd and lascivious conduct generally, though not always, requires physical contact between the parties, but does not require penetration.
In California, lewd and lascivious acts which are unlawful are generally punished under Penal Code Section 288.
Types of Prohibited Conduct
Section 288 defines a number of different crimes which involve lewd and lascivious acts and prescribes different punishments depending on the presence or absence of certain aggravating factors.
Lewd and lascivious conduct between adults is generally lawful, provided consent is present. When an adult engages in such conduct with a minor who is 16 or 17 years old, different legal standards apply and the matter is generally handled as a statutory rape, which is a lesser offense. Penal Code 288 addresses conduct between adults and minors aged 15 or less.
When an adult engages in lewd and lascivious conduct with a minor aged 14 or 15 years old and the adult is at least 10 years older than the minor, Penal Code Section 288(c)(1) applies.
Under PC 288, the legal definition of lewd and lascivious acts with a minor consists of two elements of the crime (CALCRIM 1110) that a prosecutor has to be able to prove beyond a reasonable doubt:
- You willfully touched some part of a minor’s body or you willfully caused the minor to touch their own body, your body, or someone else’s body; and
- You acted with the intent to arouse, appeal, or gratify the lust, passion, or sexual desires of yourself or the minor.
In order to be charged with Penal Code 288, the main element of the crime is that you had a specific intent to satisfy sexual arousal or desire. This means if you touched the minor’s naked body or through their clothes simply doesn’t matter.
Penalties for California Penal Code 288
A violation of Section 288(c)(1) is a wobbler under California law, meaning it can be prosecuted as either a felony or a misdemeanor. The prosecutor will typically consider the follow factors to determine how to file the case:
- The age of the minor
- The age difference between you and the minor
- Whether force was used, or fear or threat of harm to the victim or someone else
If prosecuted as a misdemeanor, the defendant convicted under subsection (c)(1) faces a possible one year in the county jail plus fines and fees.
On the other hand, if the case is prosecuted as a felony, the punishments include one, two, or three years in the California state prison. When the minor who is subject to lewd or lascivious acts is under the age of 14, much more severe punishments apply.
Under subsection (a) to Penal Code Section 288, the defendant faces a straight felony conviction which can never be reduced to a misdemeanor. The applicable punishment if convicted is three, six, or eight years in the California state prison. This punishment applies where the only conduct at issue was a lewd or lascivious act, meaning a sexually-related act.
Keep in mind that this can be anything as simple as touching of the private area, buttocks, or female breasts up to more aggravated cases involving oral copulation, penetration, digital penetration, or other conduct.
However, in cases where force, violence, threats, menace, or other methods are employed to accomplish the lewd or lascivious acts, substantially increased penalties are available.
A defendant who engages in this more aggravated conduct faces 5, 8, or 10 years in the California state prison. These enhanced penalties also apply where the victim is a dependent for whom the defendant was charged with acting as a caretaker.
PC 290 Registration as a Sex Offender
Defendants convicted of having committed a lewd and lascivious act under California law are also required to register as sex offenders under Penal Code Section 290. Currently, this registration is for life.
Recent changes in the law mean that in the future, some defendants in an appropriate case may be able to petition the court for a reduction of their sex offender registration term to 10 or 20 years. As of this writing, the courts have not begun entertaining such petitions.
Fighting Penal Code 288 Charges
Defenses to a charge of lewd and lascivious acts under California’s criminal laws include reasonable doubt, false accusation, and lack of corroboration.
The reality in lewd acts cases, as with many sexually-based offenses, is that the alleged conduct often occurs behind closed doors outside of the presence of third-party witnesses. This presents an obvious evidentiary problem for prosecuting defendants accused of these offenses.
In order to establish guilt beyond a reasonable doubt, prosecutors will look for objective independent corroboration of the victim’s claims.
This can include third-party witness statements, contemporaneous reporting to law enforcement, physical evidence, audio/video recordings, DNA or other forensic evidence, etc.
Call the Criminal Lawyers at Eisner Gorin LLP
Because of the issues of proof in lewd and lascivious acts cases as well as the potentially life-changing consequences to a defendant who is charged with one of these serious sex offenses, a prefiling intervention designed to persuade law enforcement and the prosecuting agency to drop or reduce charges is critical.
Experienced criminal defense counsel can make contact with the investigating officer and the reviewing prosecutor to present mitigating information about the defendant’s history, background, and reputation as well as argue issues of proof and any legal defenses which may apply before the case is formally filed in criminal court.
Avoiding the filing of charges ultimately saves the defendant time, money, and stress even if they would have eventually been acquitted in court due to lack of proof.
Eisner Gorin LLP are Los Angeles criminal defense lawyers located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact our firm for a consultation at (310) 328-3776.