Definition of Lewd Acts with a Child
The legal definition of lewd acts with a minor under California Penal Code 288(a) reads: “Any 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.” This, therefore, implies that the crime constitutes different elements that the prosecutor must be able to prove. These include:
- The child was under the age of 14 at the time of the act. It's important to understand that it’s not a valid legal defense to say that you had the minor’s consensus or mistook the minor’s age.
- You willfully touched any part of the child’s body or caused him/her to touch his/her own body, your body or the body of another individual. The touch can be on bare skin or through any type of clothing. Therefore the act of touching must be done deliberately or on purpose and does not constitute accidental or inadvertent contact with the child.
- The act was carried out with the intent for arousing, or gratifying lust, sexual desires, and passion of the child or yourself. The prosecutor, in this case, does not have to prove that sexual arousal did occur but must prove beyond reasonable doubt that the intent was to satisfy a sexual desire. Proving intent can be difficult and this is frequently a weakness in the prosecution’s case- something a defense attorney can exploit.
If the prosecution can be able to prove these elements, that is sufficient for a conviction and it is therefore crucial for the accused to contact an experienced sex crime defense attorney.
Strategies Employed By Police in the Investigation of Child Molestation Allegations
Police officers take cases of child molestation very seriously and the first step in their investigation involves obtaining a search warrant. This is meant to make it possible for them to investigate the case and get additional information to back up the allegations of the victim and build their case against you. In most instances, the cases are often left to detectives with specialized training in dealing with child victims. Let’s look at the components of police investigation when it concerns child molestation.
In order to get the comprehensive details of the alleged lewd acts, the police conduct interviews with the accuser. These interviews could be done by detectives with special training in dealing with child victims or by a child psychologist. The interview is usually recorded with the parent being present in some cases. In this case, the interviewer must ask questions without putting words in the child’s mouth or being too suggestive. Bad interviewers will use leading questions and it’s, therefore, crucial to get an attorney who can be able to apply a strong defense strategy.
Medical Examination & Forensic Analysis
Medical examination of the child is done when the victim alleges that the lewd act involved anal or vaginal penetration. It is deemed that a child’s body is delicate especially around the anal or vaginal area, therefore, even a slight perpetration with a finger can have adverse effects such as lesions and microscopic tears. The forensic analysis may include the child’s body, clothes and the scene of the alleged act. In addition, the investigators will be looking for the suspects DNA and this involves taking the saliva, hair, skin or semen. If there is no DNA or injuries that can be traced back to the suspect, then this can serve as evidence to prove that there was no penetration or sexual acts.
Examination of your electronic devices
During the investigation, the police may forensically examine all of your electronic devices. This may include your computer, laptop, mobile phone and email account. Such examination will give them access to internet searches including all content you erased previously. This search is also meant to look for evidence on whether you possessed child pornography. Additionally, the police want to find out if there are other victims involved. Seizing your devices especially your mobile phone is done so to enable the police to ascertain your GPS location at the time of the incident. When the police examine your electronic devices, they are geared towards collecting additional evidence to build their case against you.
Interrogation of the Suspect
An interrogation is the most critical component of the investigation because the police are always looking for a confession that will seal the case. Interrogation can either take place when the accused is in custody, at the station or jail. However, it's important to be vigilant at this point because the police can initially pretend to be on your side and approach you in a friendly manner. This pretense is meant to interrogate and pressure you into confession. This is why it is paramount to never agree to a police interview without your attorney’s presence. Even if you are innocent, the police will ask questions that will trip you. It could also be that you are confused and under pressure and you, therefore, end up giving inconsistent information which could be used by the prosecutor to argue that you are untruthful.
When faced with Penal Code 288 charges, it's possible to receive a phone call from the alleged victim. This is not just a mere call but one in which the accuser is guided on what to say. The cops are also on the line and recording the conversation. Pretext calls are made with the aim of getting the suspect to confess. The accuser may address you in a subtle manner or confront you directly. All these approaches are meant to lure you to make a response that would be likened to admission of the wrongdoing.
Legal Penalties for Lewd Acts with a Minor
Penal Code 288 sexual related offense is a wobbler and this means that it can be filed as a misdemeanor or felony. The penalties are determined by two factors that are, the manner in which the incident occurred and the age of the child at the time of the offense. The offense is considered to be a felony if the child was under 14 years old. If convicted of a felony as per PC 288, the penalties can include:
- Up to one year in county jail and probation
- Up to eight years in a California state prison
- A strike under California’s Three Strike Law
The penalty is probation and up to one year in county jail if you're convicted of a misdemeanor. If the child was over 14 years and under 18 years, then the prosecution would be under California Penal Code 261.5 PC. The charges instead would be “statutory rape” which involves sexual intercourse with a person under eighteen years of age.
In addition, the penalties will increase substantially if force, duress or threats were used. The penalties, in this case, will be an additional 5, 8, or 10 years in state prison. You could also face up to 25 years in state prison if you are a repeat offender. A conviction could also come with additional consequences regardless of the age of the victim at the time of the lewd act. These include:
- Registration as a sex offender for life per Penal Code 290
- An additional five-year prison sentence if great bodily injury was suffered by the minor
- Responsibility for any medical bills for either medical or psychological treatment incurred by the minor as a result of the lewd act
Each independent lewd act with a minor is treated as a separate offense and therefore, if you are found to have molested different minors, then each offense comes with its own violation. The decision by the prosecution is mainly based on your prior criminal history and the specific facts of the offense.
Legal Defense against Lewd Acts with a Minor
Getting accused of committing lewd acts with a minor is not an uncommon occurrence. An allegation of PC 288 has a great potential to ruin your reputation and career. Every case is unique and the prosecutors are always geared to pursue the case aggressively. A skilled Long Beach criminal defense attorney should be able to review all the facts of the case in order to develop a strong defense strategy. Some of the defense tactics that we employ in these cases include:
The touching was accidental
To be convicted of lewd acts with a minor, the prosecutor must be able to prove that you willfully touched the minor or willfully caused the minor to touch him/herself, you or another individual. It is possible to apply a defense proving that the touching was an accidental encounter and you are therefore not guilty of the charge. This involves any “touch” upon the body of the minor.
No intent to arouse or gratify
For the physical contact or touch to be considered a lewd act, it must have been made for the purpose of arousing or gratifying the alleged perpetrator or the child. Therefore, if this was not the intent, and the touching was not sexual related, then your attorney may be able to argue that you did not engage in child molestation.
The credibility of the accuser
The prosecutors mostly depend on the word of the accuser especially when there is no physical evidence. Your attorney will, therefore, have to collect evidence from different sources including subpoena school records, social networking accounts and emails. This will be used to prove whether the accuser had any hatred for you. Interviews can also be conducted with teachers, schoolmates, and friends in order to find out if might have a history of false allegations.
Other defenses include:
- Mistaken identity- the child is blaming the wrong person
- An adult manipulating the child into making the unfounded allegations
- The child doesn’t fit the age criteria for the crime
The belief that children don’t lie about sex abuse is not always right. Sometimes children are confused, coerced and vindictive. In such a case, your future and freedom are at stake. Our top-rated criminal defense attorneys have a record of sex crime defense backed by dismissals and acquittals. To secure a strong legal defense, you must act now by calling us at (562) 308-7807 or filling our online contact form to schedule a free, confidential consultation.