The State of California has a law on its books Penal Code 273g PC, that makes it a crime for a person to act with lewdness in front of a child or to be habitually drunk in the presence of a child they are caring for.
While some aspects of this law are in doubt as they have been ruled unconstitutional, you can still be charged with a crime under this law—and if convicted, you could face up to 6 months in jail.
Simply put, this statute prohibits people from acting lewdly and/or being intoxicated in the presence of a child if they are caring for them. It criminalizes engaging in lewdness or drunkenness in front of a child.
PC 273g says, “Any person who in the presence of any child indulges in any degrading, lewd, immoral or vicious habits or practices, or who is habitually drunk in the presence of any child in his care, custody or control, is guilty of a misdemeanor crime.”
It's generally assumed that adults should know that certain conduct might be inappropriate in the presence of minor children.
Thus, the California legislature has enacted some laws to protect children from exposure to specific types of behavior, such as Penal Code Section 273g PC. Let's review this state law further below.
Penal Code 273g PC Explained
This law makes it a crime to do either of the following two things:
- To indulge in "any degrading, lewd, immoral or vicious habits or practices" in the presence of any child; or
- To be "habitually drunk" in the presence of a child under your care.
Note that lewd behavior is considered illegal in the presence of any child, whether or not you are responsible for that child. The habitual drunkenness applies only to a child for whom you are responsible for care.
Whether or not someone acts in a “degrading, lewd, immoral, or vicious” way will have to be decided by a judge or jury after considering all of the details in a case.
In 1960, a California Court of Appeals ruled that the portion of PC 273g related to habitual drunkenness was unconstitutional in People v. Perreault.
The grounds for this decision were that the phrase "habitually drunk" is too vague and ambiguous.
Remarkably, however, this law has never been amended to reflect this change, so it's uncertain whether it can still be considered a crime to be intoxicated in the presence of a child.
What Are Some Examples?
EXAMPLE 1: Virginia and her husband, Bob, watch pornographic movies in the living room while their children are present. Virginia and Bob can be charged with a crime under PC 273g based on degrading or lewd behavior.
EXAMPLE 2: While babysitting a 10-year-old boy in her home, Roberta divides a stash of cocaine into small bags and sells them out her front door, a felony under HS 11352. Roberta can be charged under PC 273g based on immoral practices.
EXAMPLE 3: Ryan, who is a single father, takes his 6-year-old daughter to the store while he is intoxicated. The store owner notices Ryan is consistently drunk when out with his daughter. Ryan may be charged with a crime under PC 273g, but his attorney may be able to counter the charges by challenging its constitutionality.
What Are the Related Offenses?
The following offenses may sometimes be charged in tandem with violations of Penal Code 273g:
- Lewd acts with a minor child defined under Penal Code 288 PC: If your alleged lewd behavior directly involves the child, such as you molesting the child sexually, you may be charged with this crime along with PC 273g;
- Contributing to the delinquency of a minor defined under Penal Code 272 PC: Enabling or encouraging a minor to engage in illegal or delinquent behavior;
- Child endangerment defined under Penal Code 273(a) PC: If you willfully expose a child to pain, suffering, or danger, you can face criminal charges under this statute;
- Public intoxication defined under Penal Code 647(f) PC: This is California's drunk in public law and can be filed if you are too drunk to exercise care for your safety or the safety of others.
- DUI with a child under 14 in the car defined under Vehicle Code 23572 VC.
What Are the Penalties for PC 273g?
A violation of Penal Code 273g is a misdemeanor offense. If you're convicted of this crime, the maximum penalty is up to 6 months in county jail and a fine of up to $1000. A judge may consider individual circumstances and impose summary probation in place of jail time.
Could I lose custody of my child?
It's possible. If you're convicted under PC 273g, authorities may report it to the local Department of Children and Family Services (DCFS), which may launch an investigation. If DCFS deems the child is in an unsafe or abusive environment, they may remove the child from your custody.
What are the Defenses for PC 273g?
A variety of defenses are available to you if you're charged with a crime under PC 273g. These are discussed below.
Perhaps we can argue that the law is unconstitutional. If you're charged with "habitual drunkenness," challenging the constitutionality of the law is perhaps the most obvious and effective defense strategy since an appeals court has already ruled it unconstitutional.
Your attorney may also challenge the law's constitutionality over alleged lewd behavior, but it is less likely to result in the dismissal of the charges.
Perhaps we can argue that the child was not in your care. If your attorney can show that the child exposed to your behavior was not actually in your care, you may be able to get the charges dismissed.
Perhaps we can argue that you were unaware a child was present. For example, maybe you were engaging in consensual sex with a partner and did not notice a child was in the room.
Perhaps we can negotiate with the prosecutor for reduced charges of a case dismissal after the prefiling intervention, called a “DA reject.”
You can contact our California criminal defense lawyers for an initial case review by phone or using the contact form. Eisner Gorin LLP is based in Los Angeles, CA.