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Sending Harmful Material to a Minor

Accused of Sending Harmful Material to a Minor? Call (626) 827-7222 Today

California Penal Code Section 288.2 covers the crime of sending “harmful material” to a minor (a person under the age of 18), with intent of seducing said minor and with intent of sexually arousing yourself and/or the minor.[1]

The statute prohibits sending any obscene or indecent materials by any means including via the use of the internet (email, texting, chatting on social media platforms, etc.). This can include “sexting”, sending of indecent and/or nude photos, sending of pornographic materials, etc. to a minor.

It is not uncommon for innocent people to be charged of this crime due to false accusations and rushed judgement when minors are involved because any allegation of a crime involving children or minors is taken seriously by the police, prosecutors, and judges.

To better understand the crime of sending harmful matter to a minor, we at Second Chances Law Group, APC explain in greater detail relevant matters relating to this crime.

What is considered “Harmful Material”?

Harmful material is defined as follows:

  • It shows or describes sexual conduct in an obviously offensive way;
  • A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors; AND
  • An average adult person, applying contemporary statewide standards, would conclude it appeals to prurient interest.[2]

“Material” can be a book, magazine, newspaper, video recording, pictures, drawings, photographs, motion picture, live or recorded telephone messages, among others.[3]

“Prurient interest” is a shameful or morbid interest in nudity, sex, or excretion.[4]

“Average adult person” can be any person from the community, including both men and women; religious and nonreligious people; and adults of varying ages, educational and economic levels, races, ethnicities, and points of view.[5]

“Contemporary statewide standard” is not what you find offensive based on your own personal, social, or moral views. What this means is what is acceptable to the statewide community as a whole, not what some person or persons may believe the community ought to accept. The test to determine contemporary statewide standard is making an objective determination of what would offend the statewide community as a whole.[6]

“Applying contemporary statewide standards” means using present-day standards and determining the effect of the material on all those whom it is likely to reach within the state, in other words, its impact on the average person in the statewide community.[7]

What constitutes the crime of Sending Harmful Matter to a Minor

To be guilty of the crime “lewd and lascivious acts with a child” prosecution needs to prove that the person charged with the crime:

  • Showed/sent/caused to be sent/distributed/or offered to show or distribute harmful material depicting a minor or minors engaging in sexual conduct to another person by any means[8]
  • Showed/sent/caused to be sent/distributed/ or offered to show harmful material to a minor by any means[9]
  • Knew that the material is obscene/indecent
  • Knew or should have known, or believed that the other person was a minor
  • Intended to seduce, arouse, appeal to, or gratify the lust, passions, or sexual desires of himself/herself or of the minor


Penal Code § 288.2 is a wobbler (can be charged as a misdemeanor or as a felony) depending on the circumstances of the case and a person’s criminal history. If the person commits this offense more than once, the second commission is an automatic felony.

As a misdemeanor conviction of Penal Code § 288.2 carries the penalty of summary (or informal) probation, OR up to 6 months in county jail, AND/OR a maximum fine of $1000.

A felony conviction carries the penalty of formal probation, OR 16 months, or 2 or 3 years in the California State Prison, a maximum fine of $1000, AND lifetime duty to register as a sex offender.

If the harmful material was sent via the internet, the defendant’s computer will be subject to confiscation and forfeiture for both misdemeanor and felony convictions.[10]

Possible Defenses

Depending on the circumstances of each case, there can be various legal defenses against a charge of sending harmful material to a minor.

Some possible defenses include, but are not limited to:

  • Material sent was not harmful
  • There was no intent to seduce a minor
  • Falsely being accused
  • For a parent or guardian, the material sent was to promote legitimate sex education
  • A person (not a parent or guardian) whose purpose of sending the material was for a legitimate scientific or educational purpose

Let Second Chances Law Group, APC Protect Your Rights & Future

If you have been accused or charged with the commission of sending harmful material to a minor, the repercussions are not only serious but could also be potentially life-ruining. It is all-important to hire an experienced, and aggressive and seasoned private defense lawyer to fight your case.

At Second Chances Law Group, APC, Attorney Joe Coimbra has nearly two decades of legal experience and has handled criminal cases in all of California’s Superior Courthouses. He knows what it takes to obtain dismissals, acquittals, and reductions through litigation and negotiation.

[1] California Penal Code § 288.2

[2] Judicial Council of California Criminal Jury Instructions 2017, Section 1140

[3] Id.

[4] Id.

[5] Id.

[6] Supra note 2.

[7] Id.

[8] California Penal Code § 288.2 (a)(1)

[9] California Penal Code § 288.2 (a)(2)

[10] California Penal Code § 502.01

If you have been accused of sending harmful material to a minor, call (626) 827-7222 to discuss your case with our legal team today.

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