The crime of lewd and lascivious act with a minor with force, also referred to as child molestation, is found at California penal code section 288(b)(1). The following is a brief overview of the laws, penalties, and common defense associated with penal code 288(b)(1) crimes. For further information, contact our sex crimes criminal defense lawyers today for a free consultation.
PC 288(b) Laws:
A person who commits a lewd and lascivious, by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury, on a child under the age of fourteen (14), is guilty of PC 288(b)(1) [PC 288(b)(1) Paraphrased].
A person who is a caretaker and commits a lewd and lascivious act upon a dependent child, who is under the age of fourteen (14), by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the child, or another person, is guilty of PC 288(b)(2) [PC 288(b)(2) Paraphrased].
A lewd and lascivious act is an indecent or offensive sexual touching of a child, with the intent to sexually arouse either the child, or the perpetrator. So long as the defendant has the requisite intent to sexually arouse the child or himself/herself, when the touching occurs, the crime of lewd and lascivious act is complete. It does not matter if sexual arousal is accomplished.
Force Required: The force required to prove a penal code 288(b) charge is an amount of force beyond that which is required to commit the crime.
For example, all sexual touching requires some force to be accomplished, but if the defendant forces a child’s hand to touch the defendant by pulling the child’s hand towards the defendant’s genitals, then force beyond the act of touching itself is probably shown for PC 288(b) purposes.
Note: Every PC 288(b) case is decided on a case-by-case basis in terms of whether there is force beyond the force required to commit the lewd and lascivious act. Where force is not shown by the district attorney, the crime of lewd and lascivious act upon a child under fourteen (14) without force might still be proved (See PC 288(a)).
PC 288(b) Penalties
The crime of lewd and lascivious act with a child under fourteen (14) with force is always charged as a felony. The two most common PC 288(b) charges include PC 288(b)(1) lewd act on a child under 14 w/force, and PC 288(b)(1) lewd act with a child under fourteen (14) by a caretaker.
Note: For purposes of penalties, both PC 288(b)(1) and PC 288(b)(2) carry very similar penalties, including prison length, sex offender registration length, and more.
Prison Sentence: If found guilty of penal code 288(b)(1) or (b)(2), the defendant will face up five (5), eight (8), or ten (10) years in prison. The defendant might qualify for a non-prison sentence in “special” cases where the interest of justice calls for a non-prison sentence.
Triad Prison Sentencing: Whether or not the defendant receives a probation sentence (only in “special cases”), a five-year, eight-year, or a ten-year prison sentence after a conviction for PC288(b) depends on many factors, including the defendant’s criminal history, the sophistication of the crime alleged, the level of force used against the child, and much more.
Probation Sentence: As stated, a probation sentence in PC 288(b) crime is allowed, but only if the interest of justice is met by allowing the defendant to serve a non-prison sentence. The “interest of justice” will only be met in some cases where society can be protected if the defendant is released on probation, the defendant is amenable to a probation sentence, and where the facts of the case justify a probation sentence.
Joint Suspended Prison Sentence: A joint suspended prison sentence is a prison sentence that is not served unless the defendant violates a condition of his or her non-prison sentence. Joint suspended prison sentences, and split prison sentence (served partially out of prison), are not available in PC 288(b) cases.
This means that the defendant must serve his or her entire incarceration period in a California state prison, as opposed to a local county jail, and no part of that prison sentence may be served out of custody (unless a probation sentence is allowed).
Sex Offender Registration: Lewd and lascivious act against a child under 14 by force is a tier 3 sex offender registration crime. This means that the defendant, upon conviction for a PC 288(b), will be required to register as a sex offender for the remainder of his or her life (See Sex Offender Registration).
Three Strikes Crimes: Both PC 288(b)(1) and PC 288(b)(2) are classified as serious and violent offenses under California Three Strikes Sentencing Law. As such, lewd and lascivious acts upon a child under 14, with force, is a “strike” offense in California, and conviction of which could subject the defendant to increased penalties for future criminal conduct. In addition, PC 288(b) crimes are eligible for only fifteen percent (15%) good conduct credits while in prison.
Crime Involving Moral Turpitude: All lewd and lascivious act crimes are classified as crimes involving moral turpitude, or CIMT. A CIMT is a crime that involves deceit or is otherwise considered morally wrong. CIMT carry special direct and indirect penalties associated with immigration status (for non-US citizens), professional licensing, military service, and more.
Further Penalties: In addition to the penalties listed above, if found guilty of penal code 288(b)(1)-F, the defendant will suffer additional penalties, including restitution to restore the victim’s economic loss, criminal protective orders (CPO), civil lawsuits for battery and intentional infliction of emotional distress upon the child, court fees and fines, loss of scholarship opportunities, loss of firearm rights, and more.
PC 288(b) Defenses
Every lewd and lascivious act upon a child under 14 with force is different, therefore, every defense to a PC 288(b) criminal charge is unique. With that said, certain defenses tend to be utilized more than others in PC 288(b) cases, including coerced confession, illegal search and seizure, insufficient evidence to prove force, insufficient evidence to prove sexual intent, and more.
Keep in mind that the statute of limitations defense to PC 288(b) crimes might be available in some very limited situations. The statute of limitations for sex crimes in general is complex and rarely used in PC 288(b) cases; however, for further information, see Statute of Limitations for California Crimes.
Also, consent to sexual touching is never a defense in lewd and lascivious act against a child case. This is because a child (minor under the age of 18 in California) does not have the legal capacity to consent to sexual touching.
Note: It is common for criminal defense attorneys to incorporate a psychologist or forensic interviewer to demonstrate any adoptive statements, coerced statements, leading questions, compound questions, argumentative questions, etc., that might have been used when interviewing the child to show unreliability of the child’s statement.
Post Conviction Relief: Post conviction relief in PC 288(b)(1) and (b)(2) cases is very limited. However, in some cases, a defendant might want to withdraw a guilty plea, appeal the criminal conviction, or petition the court for a certificate of rehabilitation.
For more information on the crime of lewd and lascivious act with a child under 14 with force, or penal code 288(b), contact our sex crimes criminal defense lawyers for a free consultation. Our sex crimes criminal defense lawyers have helped hundreds of defendants charged with PC 288 crimes, including PC 288(a), PC 288(b)(1), PC 288(c)(1) and more. We can help you too. Call today!
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