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Lewd and Lascivious Acts with a Child in West Covina

The Definition of Lewd and Lascivious Acts with a Child

Under Penal Code Section 288, a person guilty of the said crime is defined as “a 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 a felony and shall be punished by imprisonment in the state prison for three, six, or eight years”

Although the above definition specifically states, “a child who is under the age of 14 years”, this California statute also covers minors who are under 16 years of age. The law also makes it a crime for caretakers to commit a lewd act by using force or threat against “dependents” including elderly dependents and persons with physical disabilities.

In addition, lewd and lascivious acts can be committed through the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else.

What Constitutes the Crime of Lewd and Lascivious Acts with a Child?

To be guilty of the crime “lewd and lascivious acts with a child” prosecution needs to prove that the person charged with the offense “willfully touched any part of a child’s body either on the bare skin or through the clothing,” or “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. Furthermore, the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child.”

Actual arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child is NOT required to be guilty of this crime. Intent is sufficient to be guilty of this crime.

Whether or not intent was present, that is something for the jury to decide considering the circumstances. The jury could consider the circumstances around the physical contact or touching and sometimes the absence of an innocent explanation could be deemed as an indicator of intent.

Willfully means that a person does the lewd act willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The following are the penalties if found guilty under one of the provisions of Penal Code Section 288:

  • Child is under 14 (no force etc. used) – Three, six, or eight years in state prison, or formal probation and a fine of up to $10,000 PC 288
  • Child is under 14 but with the use of force etc. – Five, eight, or ten years in state prison and a fine of up to $10,000
  • Lewd act with force by caretaker of dependent – Five, eight, or ten years in state prison and a fine of up to $10,000
  • Child is aged 14 or 15 and defendant is 10 years older than the child – one, two, or three years in state prison, and a fine of up to $10,000, or one year in county jail, and a fine of up to $1,000
  • Child is under 14 and bodily harm was inflicted – Lifetime in prison

The penalties depend on certain factors such as the age of the child, whether the lewd and lascivious act done through the use force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else, if the child is 14 or 15, the age gap between the defendant and child, and the frequency or pattern of lewd acts, among other factors.

Apart from the above-stated penalties, a conviction of this crime can lead to the loss of the right to own a firearm, cancellation of a professional license or prohibition to take an exam for a professional license, possible immigration consequences such as deportation.

In addition to the criminal aspect of a case for lewd and lascivious acts with a child, victims may file civil suit in addition to the criminal suit. It is not required that the defendant was found guilty in the criminal suit for a civil suit to prosper, it is not even required that a criminal suit for lewd and lascivious acts were filed against the accused in a civil suit.

Civil suits must be filed within eight years of the victim turning 18 or within three years of the date on which the plaintiff discovers—or reasonably should have discovered—that psychological injury or illness occurring after the age of majority was caused by the sexual abuse.

Registration as A Sex Offender

A person found guilty of committing the crime of lewd and lascivious acts with a child is required under Penal Code Section 290 to register as a sex offender for a lifetime. However, with the introduction of the amendments to the sex offender registration laws, which will take effect on January 1, 2021, persons guilty of this crime will be required to register under the new tiered system of registration.

Here are the new tiers for sex offender registration in California:

  • Tier I – Minimum of 10 years registration
  • Tier II - Minimum of 20 years registration
  • Tier III – Lifetime registration

First-time offenders of this crime may qualify under Tier II. Those who have a second or subsequent convictions under Penal Code Section 288 (a) or any conviction under Penal Code Section 288 (b)(1) will be deemed as Tier III offenders and are required to register for a lifetime.

Possible Defenses for Lewd and Lascivious Acts with a Child

Depending on the circumstances, there can be various legal defenses against a charge of lewd and lascivious act with a child.

Some possible defenses include, but are not limited to the following:

  • Lack of intent on the part of the accused to arouse, appeal etc.
  • Accused had physical contact with the child but said contact was accidental
  • The child is lying
  • The accuser made a mistake as to the identity of the defendant
  • The defendant was victim to a violation of his Constitutional rights by police officers in an investigation for lewd acts with a child

It is important to note that consent of the child to the lewd act/s is never a defense. In addition, mistaken belief as to the age of the child (defendant thought that the child was older than their actual age) is also not a defense. Mistaken belief as to age only applies to attempted lewd acts on a child under 14 years.

Other Related Crimes

Penal Code § 288.2 – Sending Harmful Matter to Seduce a Minor. Under this statute, it is crime to for a person who knowingly sends harmful material (such as nude photos, pornography, etc.) to a minor with the intent of arousing yourself or the minor. “Sending” can be through physical delivery, mail, telephone, or other electronic means such as chatting, email etc. This crime can be charged as either a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or as a felony, punishable by imprisonment in the state prison for two, three, or five years.

Penal Code § 288.3 – Contacting a Minor with Intent to Commit a Felony. Under this statute, it is a crime to knowingly attempt or actually contact or communicate with a minor with intent to commit a sexual offense. (Ex. arranging a meeting with a minor for a sexual encounter with said minor) This crime is a felony and punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.

Penal Code § 288.4 – Arranging a Meeting with a Minor for Lewd Acts. Under this statute, it is a crime for a person to knowingly arrange a meeting with a minor for the purpose of engaging in lewd acts. (Ex. Contacting a minor so a person can expose his or her genitals or pubic or rectal area to the minor, or to have the minor expose his or her genitals or pubic or rectal area to the person, or for purposes of engaging in other lewd or lascivious behavior) This crime is charged as either a misdemeanor punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment or as a felony if the person has a prior sex offense conviction. In addition, if the person goes to the arranged meeting place at or about the arranged time, it shall be a felony and punished by imprisonment in the state prison for two, three, or four years.

Penal Code § 288.5 – Continuous Sexual Abuse of a Child. Under this statute, continuous sexual abuse means engaging in three or more "acts of lewd or lascivious conduct" over a period of three months or longer, with a child under 14 years of age. It is a felony and punished by imprisonment in the state prison for a term of 6, 12, or 16 years.

Penal Code § 288.7 – Sex with a Child Under 10 Years of Age. A person who is 18 years old or older who has sex with a child under 10 years old is guilty of this crime is punished by imprisonment in the state prison for a term of 25 years to life. If person engages in oral copulation with child under 10 years, they are punished by imprisonment in the state prison for a term of 15 years to life.

Penal Code § 288a – Oral Copulation with a Minor. Under this statute, it is a crime to engage in oral sex with a minor under the age of 18. Even if the minor consented to the oral sex, this statute makes it a crime against the person who is not a minor. If the minor is under the age of 14 (PC §288(c)(1)), it shall be considered a felony and punished by imprisonment in the state prison for a term of 3 years to 12 years.

Penal Code § 207 – Kidnapping. Kidnapping is sometimes charged along with other sex crimes when a person persuades, entices, or lures a minor with intent to commit a sex crime against the minor. If kidnapping is committed for purposes of committing a sex crime against a minor, it is punished by imprisonment in the state prison for 5, 8, or 11 years.

Penal Code § 243.4 – Sexual Battery. Under this statute, it is a crime to touch the intimate parts of another person for sexual arousal, sexual gratification, or sexual abuse. There is no distinction as to age here. This crime is usually charged if the victim is aged 16 or 17, or the child is aged 14 or 15 and the defendant is not more than ten years older than the victim. This is crime can be charged as either a misdemeanor or a felony.

Penal Code § 269 – Aggravated Sexual Assault of a Child. Under this statute a person is guilty of aggravated of a sexual assault if a person commits 1) rape, 2) rape or sexual penetration, in concert, 3) sodomy, 4) oral copulation, and 5) sexual penetration against a child who is under the age of 14 and the child is 7 or more years younger than the defendant. This crime is a felony and punished by imprisonment in the state prison for a term of 15 years to life.

Penal Code § 647.6 – Annoying or Molesting a Minor. A person is guilty of this crime if a person engages in conduct that disturbs or irritates a minor and the annoying or irritating conduct is motivated by sexual interest in a child or children. (ex. Directing inappropriate language towards a minor, masturbating in view of the minor etc.) A first offense is charged a misdemeanor. Subsequent offenses or those committed by person with a prior sex offense are charged as felonies.

Penal Code § 311 – Child Pornography. Under this statute, it is a crime to possess or distribute any material containing child pornography. (minor engaging in sexual conduct or display of genitals of such minor)

Let Our West Covina Legal Team Protect Your Rights & Future

If you have been accused or charged with the commission of lewd and lascivious acts with a child, the repercussion is not only serious but could also be potentially life-ruining. It is all-important to hire an experienced, and aggressive and seasoned private West Covina defense lawyer to fight your case.

We always make our clients feel right at home and we encourage you to take comfort in the fact that you have a dedicated advocate on your side at Coimbra Law Firm, APC. Our highly-experienced lawyers at Coimbra Law Firm, APC will help ensure that your Constitutional rights are protected.

We guarantee that each of our clients will receive personalized attention, complete discretion, and a trained staff working to provide the best legal assistance available. Our only job is to defend you with the maximum competence, diligence, and zealousness.

Do not hesitate to call (626) 827-7222 for the representation you need.

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