Penal Code 288(b)(1) PC - Lewd Acts with a Minor by Force or Fear
California Penal Code 288(b)(1) PC makes it a crime to commit a lewd act on a minor under 14 by using force or fear of bodily injury. PC 288 describes a lewd act with a minor as touching them or causing a minor to touch themselves or another person for a sexual purpose.
Simply put, PC 288(b)(1) prohibits willfully touching a minor under 14 for sexual purposes or making them feel themselves or someone else for the purpose of sexual gratification. You must use force or fear of bodily harm during the incident to violate this law.
Lewd acts with a minor are defined under Penal Code 288 PC as willfully touching a child for sexual purposes. The force or fear factor element that is required for a conviction involves any physical threat or contact related to the meeting where the lewd act occurred.
PC 288 says, (a) “A person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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….”
Penal Code 288(b)(1) PC says, “A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for five, eight, or ten years.”
A conviction under this law will also result in a mandatory requirement to register as a tier-three sex offender under Penal Code 290 PC for life.
What Must Be Proven for a Conviction?
To convict you of violating Penal Code 288(b)(1), a prosecutor must prove beyond any reasonable doubt all the crime elements of the crime, such as the following:
- You committed a lewd act on a child under the age of 14 and
- You used force or fear of immediate bodily injury.
Under California law, a “lewd act” is the willful touching of a child for sexual purposes or intentionally causing a child to touch themselves or another person for a sexual purpose.
The lewd acts must be committed with the intent of arousing or gratifying the lust of yourself, the minor, or someone else. The case details determine the crucial element of whether you used fear of bodily injury.
A lewd and lascivious act is an indecent sexual touching of a child with the intent of achieving sexual arousal, regardless of whether sexual arousal was accomplished.
The force required to prove a Penal Code 288(b)(1) PC charge is an amount of force beyond that needed to commit the crime. For example, if you force a minor's hand to touch your genitals, then it would be sufficient to support these charges.
Suppose the District Attorney cannot prove force. In that case, the crime of lewd and lascivious act upon a child under 14 without force might still be proven as defined under Penal Code 288(a) PC.
What are the Penalties for PC 288(b)(1)?
Suppose you are convicted of violating California Penal Code 288(b)(1) PC, lewd acts on a minor using force or fear. In that case, it's always a felony that carries the following penalties:
- Five, eight, or ten years in state prison.
- Registration as a tier-three sex offender for life.
It should be noted that the judge can impose felony probation instead of jail time. Sometimes, you might qualify for a non-prison sentence in special cases where the “interest of justice” calls for it.
The interest of justice element can only be satisfied if the judge determines that society can still be protected if you are released on probation and the facts of the case justify a probation sentence. Whether you will receive a prison term or probation will depend on many factors, such as:
- Your criminal history,
- The severity of the crime,
- The level of force or fear used against the minor.
Joint suspended and split prison sentences served partially out of prison are not available in PC 288(b)(1) cases. You must serve the entire incarceration period in a California state rather than a county jail. No part of that prison sentence can be served out of custody unless a probation sentence is allowed.
PC 288(b)(1) lewd and lascivious act against a child under 14 by force is a tier three sex offender registration crime, meaning you will be required to register as a sex offender for the remainder of your life.
PC 288(b)(1) is considered a severe and violent offense under California's Three Strikes Sentencing Law. This means a conviction will be a “strike,” which can subject you to increased penalties for future convictions. PC 288(b)(1) is only eligible for 15% good conduct credits in prison.
Further, all lewd and lascivious acts with minors are classified as crimes involving moral turpitude, meaning morally wrong. This means a conviction will carry collateral consequences, such as a negative impact on immigration status for non-US citizens, professional licensing, and military service. Other possible penalties for a Penal Code 288(b)(2) conviction include the following:
- Paying victim restitution,
- Civil lawsuit for intentional infliction of emotional distress,
- Criminal protective orders (CPO),
- Court fees and fines,
- Loss of firearm rights.
What Are Related Crimes?
Several California crimes are related to PC 288(b)(1) lewd acts with a minor by force or fear, as discussed below.
Penal Code 288(a) PC lewd acts with a minor child
PC 288 Lewd acts with a minor without force when you commit a lewd and lascivious act with a child under 14 for the purpose of sexual gratification. A felony conviction carries a state prison sentence of three, six, or eight years in state prison and mandatory sex offender registration for 20 years (Penal Code 290).
Penal Code 288(i) PC lewd acts with minor causing harm
PC 288(i) occurs when you commit an indecent act with a child under 14 for sexual gratification and cause them physical harm. This felony carries a life sentence and requires tier-three lifetime sex offender registration.
Penal Code 288(b)(2) PC lewd acts by a caretaker
PC 288(b)(2) PC lewd acts with force by a caretaker occur when lewd acts are committed on a dependent or impaired person. This felony carries a state prison sentence of five, eight, or ten years and requires lifetime tier-three registration as a sex offender.
Penal Code 287 PC oral copulation with a minor
PC 287 oral copulation with a minor under 18 or anyone when the use of force, violence, duress, menace, or fear accomplishes it. A conviction carries a state prison sentence of up to eight years.
Penal Code 261.5 PC statutory rape
PC 261.5 PC statutory rape law makes it a crime to have sexual intercourse without a minor under 18, even if there was consent, because a minor can't legally consent to sexual activity. California has no close-in-age exceptions, known as the Romeo and Juliet law.
What are Legal Defenses?
Our California sex crime lawyers can use different legal defenses for charges of California Penal Code 288(b)(1) lewd act with a minor by force or fear, such as the following:
- No force or fear was used,
- The touching was accidental,
- Insufficient evidence,
- False allegation.
Under this law, you can only be guilty if you commit a lewd act by using force or fear. Thus, perhaps we can argue that your conduct can't be considered using force or fear.
Perhaps we can argue that the touching was accidental. Prosecutors must prove that you willfully touched a minor's body by force or fear with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of yourself or the child.
Perhaps we can argue that there is insufficient evidence to convict. Maybe we can cast enough reasonable doubt by showing that the touching was not intentional.
Perhaps we can argue that you are the victim of a false allegation. Maybe the accuser lied or was coached by an adult seeking revenge over a bad relationship that had recently ended.
Perhaps we can negotiate with the prosecutor for reduced charges or a case dismissal. Maybe we can negotiate prefiling with police detectives and the District Attorney's Office and persuade them not to file formal charges (DA reject).
Notably, consent to sexual touching is never a defense in a lewd and lascivious act against a child because a minor under 18 in California does not have the legal capacity to consent to sexual touching. Contact us for more information and a free case evaluation. The Hedding Law Firm has offices in Los Angeles, CA.
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