Typically, when most people think about child molestation, they think of it in the context of direct sexual contact of some sort (e.g., touching a child's "private parts"

However, California law defines child molestation in much broader terms, basing the offense more on the intent and purpose of the person doing the touching than on what part of the body was touched.

Under this broad definition, it's possible to be charged with committing lewd or lascivious acts with a minor (Penal Code 288a, the most common statute associated with child molestation) even if you never actually made contact with the alleged victim's private parts.

In fact, even an affectionate touch on the shoulder, if misinterpreted, can result in criminal charges. A district attorney only needs to prove a few key elements beyond a reasonable doubt for a conviction under PC 288(a).

Key Takeaways

• In California, people can face charges of child molestation under Penal Code 288 even if they do not touch the child's private parts.
• The law is intentionally broad and does not require contact with genitals, breasts, or buttocks for someone to be convicted.
• The key factor is sexual intent. The type of touching is based on the defendant's purpose, not the location on the body where it occurs.
• No penetration is necessary. The act does not require penetration or skin-to-skin contact.
• Age and consent mistakes are not valid defenses. If the child is under 14, it does not matter if the defendant mistakenly believed the child was older. A minor also cannot legally consent to these acts.

Understanding Lewd or Lascivious Acts (PC 288a)

California Penal Code 288(a) makes it a felony to "willfully and lewdly" commit any "lewd or lascivious act" upon a child under the age of 14.

The core of this offense is not the specific body part touched but the intent behind the contact. The law focuses on acts committed with the intent of arousing, appealing to, or gratifying the sexual desires of either the perpetrator or the child.

To secure a conviction under PC 288(a), the prosecution must prove several key elements beyond a reasonable doubt:

• The defendant committed a lewd or lascivious act on a child.
• The child was under 14 years of age.
• The defendant acted with lewd intent.

In simple terms, to secure a conviction under PC 288(a), a prosecutor needs to prove only a few core elements beyond a reasonable doubt.

These include touching any part of a child's body - whether over or under clothing - where the defendant willfully touched the child's body or caused the child to touch their own or the defendant's body.

The act must be performed with the specific goal of sexually arousing or satisfying lust, passions, or sexual desires of either the defendant or the child. Without this sexual intent, the act would not qualify as a lewd act. At the time of the act, the child must be under 14 years old.

What Exactly is a Lewd or Lascivious Act?

A "lewd or lascivious act" is defined as any touching of the body of a child or the defendant's own body with the specific intent to arouse or gratify either person sexually. This "touching" can occur in several ways:

• The defendant directly touches the child's body.
• The defendant causes the child to touch their own body.
• The defendant causes the child to touch the defendant's body.
• The defendant causes the child to touch the body of another person.

The Myth of "Private Parts"

A significant point of confusion regarding PC 288(a) is the location of the alleged touching. While a child's private parts are generally understood to be their genitals, buttocks, or breasts, the statute itself does not make this distinction.

The law states that the act can be committed "upon or with the body, or any part or member thereof, of a child." This means that an act can be considered lewd and lascivious regardless of where on the body the contact occurs. The determining factor is not the location of the touch but the intent behind it.

An innocent act, like patting a child on the back or shoulder, is not a crime. However, if that same act is done for the purpose of sexual arousal or gratification, it can fall under the purview of PC 288(a).

For example, a person could be charged for touching a child's arm, leg, or back if the prosecution can establish that the contact was done with lewd intent.

That being said, proving this intent can be challenging for the prosecution, as it requires demonstrating the defendant's state of mind at the time of the alleged act.

Evidence might include the context of the situation, the defendant's statements or behavior, or other circumstances that suggest a sexual motive. Thus, while it is much easier to prove a violation of PC 288a if private parts were touched, you can still be convicted of this crime as long as the prosecution can show that the touching involved was for sexual gratification.

Penalties for a PC 288(a) Conviction

A conviction for committing a lewd or lascivious act with a child under 14 is a serious felony offense. The consequences are severe and can have a lifelong impact. The standard penalties include:

• Imprisonment in state prison for three, six, or eight years. The judge has discretion to choose the lower, middle, or upper term depending on the circumstances of the case.
• A fine of up to $10,000
• Formal probation for five years or more
• Registration as a sex offender pursuant to California Penal Code Section 290

In addition to these penalties, a conviction under PC 288a counts as a "strike" under California's "Three Strikes Law," which can dramatically increase sentences for any future felony convictions. There may also be other consequences, such as mandatory counseling and restrictions on further contact with minors.

Certain circumstances can lead to enhanced penalties. For instance, if the act was committed using force, violence, duress, or menace, the potential prison sentence increases to five, eight, or ten years. If the defendant personally inflicted substantial physical injury on the victim, the penalty could be life in prison with the possibility of parole.

What are Related Crimes?

In certain instances, actions that do not involve physical contact may still result in other sex crime charges, such as:

• Penal Code 647.6 (Annoying or Molesting a Child): This crime can be committed even without physical contact if a sexual interest in children drives the behavior.
• Penal Code 288.4 (Arranging a Meeting for Lewd Purposes): This offense pertains to organizing a meeting with a minor for sexual activities, regardless of whether the meeting occurs.
• Penal Code 288.3 (Contacting a Minor for a Felony): This law bans contacting or communicating with a minor with the purpose of committing a sex crime.

What are the Typical Defenses Used?

Although these charges are serious, an experienced California criminal defense attorney can employ various defenses depending on the specifics of your case. Common defenses include:

• Lack of intent: As intent is a crucial part of PC 288(a), demonstrating that there was no sexual motivation behind the alleged actions can serve as an effective defense.
• False Allegations: Young children might misunderstand actions, or allegations could stem from manipulation during custody conflicts or coercion by an adult.
• Insufficient Evidence: Cases under PC 288(a) often depend largely on a child's testimony. Although this testimony is influential, it must be backed by corroborating evidence. A knowledgeable defense lawyer will scrutinize the prosecution's evidence for gaps, inconsistencies, or missing corroboration.

For more information, contact our criminal defense law firm, Eisner Gorin LLP, in Los Angeles, CA.

Related Content:

• Solicitation of Minors Under 16
• Lewd Acts Special Considerations
• Text of California Penal Code 288 PC
• CALCRIM 1110. Lewd or Lascivious Act
• People v. Jones (1990) 51 Cal.3d 294