Among the sex crimes against children are Lewd acts with a minor. Individuals who find themselves accused of lewd sex with a minor in Orange county face the law's full wrath. The statute that addresses the lewd acts states that the age of consent is 18 years. Hence, adults should protect children from sexual abuse. If you, therefore, abuse a child, under the age of 14 years, you will face charges of lewd acts with a minor, even if the child actively participated in the incident. You ought to know the full extent of the law and available options if you have been accused. Remember, wrongful accusations lead to wrongful convictions. Get skillful representation from Orange County Criminal Lawyer who will fight the allegations and the charges. Our qualified legal counsel will help to protect your rights and safeguard your future.
Lewd Acts With a Minor as Defined By Law
The law of California under Penal Code 288(a) interprets lewd acts with a minor as any indecent sexual conduct that is considered improper to a child. Within the chapter of this statute, you are prohibited from bigamy, incest, and crimes against nature. It is illegal for you to commit any immoral actions with a child who is 14 years and below. More so, with the intent of appealing, arousing, or satisfying your sexual urge or that of the minor.
You might be accused of committing lewd acts with a child if you:
Knowingly touch a minor's private parts over the clothing or on bare skin.
Forcing the minor to have contact with your body or someone else body
Luring a minor to take off clothes or watch your nudity
Oral copulation with a minor
To be charged with lewd acts, it is not a must for the defendant to have touched the victim. Mailing any obscene content, exposing nude photos, making questionable calls or comments, peeping, are some of the ways considered as lewd behavior.
For example, Peter enjoys the evening breeze outside his home, nude. The passers-by, including school-going children, watch him with shocked expressions as they walk. He thinks it's funny and strikes a nude pose to see their behavior.
Although Peter exposes himself in his home, he can be viewed by people walking by. He poses a lewd act, and it is a crime. If children see his nude, it is considered as a lewd act with a minor and carries a strict penalty.
Penalties for Lewd Acts With A Minor
The punishment for Penal Code 288(a) is charged as a wobbler. This simply means that the violators of the crime face a misdemeanor or a felony. It depends on the circumstances of their cases and prior criminal history. The offense is characterized by several factors, including the victim and defendant's age difference, age of the victim, and how the lewd act was accomplished. The following are possible scenarios resulting in maximum penalties that the accused might face:
Lewd Acts Without Force or Threat to a Child Under 14
If you violated the Penal Code 288(a), you are charged with a felony. Especially if the child was under 14 years, if there was no force or threat used, the accused can be punished by going to prison for 3-8 years and a fine of up to $10,000.
The judge can grant probation instead of jail time. For this to happen, the accused reported to the police or the evidence given to reinforce the charges. The judge focuses on the accused good character and previous criminal history. The probation may include one year in county jail though it rarely happens.
Lewd Acts With Force or Threat Against A Minor
You would violate Penal Code 288(b)(1) if the lewd act with a minor were accompanied by violence, force, coercion, or threats. The punishment includes five to ten years in jail and a $10,000 fine. Unfortunately, the accused of this Penal Code cannot be granted probation. Having used force or threats clearly shows that the defendant's action was intentional. The court, therefore, must order jail time for the accused.
The Lewd Act Resulted in Body Injuries to The Minor
The penalty for a lewd act would be extremely harsh when the minor gets injuries physically. The accused can be imprisoned for five years, 25 years to life, or face a life sentence. The judge can use any or all the penalties. Inflicting physical pain to a minor during a lewd act can make the defendant face a sentence increase from 5 years to life imprisonment.
The Age Difference Between The Defendant and The Minor
If the defendant was ten years older than the minor, the accused is charged under Penal Code 288( c)(1) punished as a wobbler. It is a criminal offense to commit a lewd act with a minor who is 14 or 15 years. The prosecutor will decide on the case, depending on the case facts and the defendant's criminal history.
The accused faces charges with a misdemeanor and gets one year of jail time. Additionally, the accused has to record as a sex offender. As a felony, the penalty is 16 months to 3 years in county jail or probation that also includes 1-year jail time.
Defendant's Second or Subsequent Conviction
A defendant who has been convicted earlier would be punished under Penal Code 667.71(b). The offenders are perpetual sex offenders. The defendant becomes a habitual sex offender and faces 25 years to life in prison.
Sex Offender Registration
Those convicted of lewd acts with a minor are forced to register as sex offenders for life with the state. However, at the beginning of 2021, the sex offender registration will be separated into three tiers based on the intensity of the offense.
The first time offenders convicted of lewd acts with a minor will be placed in tier 2. They would be registered as sex offenders for twenty or more years. Tier 3 will involve those offenders with the most severe cases. This would apply to those with a second or subsequent violation of PC 288(a). The accused will be required to have a lifetime sex offender registration.
Moreover, individuals convicted for Lewd acts with a minor crime face several other consequences, including a loss of a professional license, not owning a firearm, deportation, or entry denial. It requires an expert criminal lawyer from an orange county criminal lawyer to intervene in your case to ensure that you get a fair judgment.
Statute of Limitations for Lewd Acts With A Minor
Under the California PC 801.1, execution for lewd acts with a minor can start even after 20 years of the criminal violation. The prosecutor must file the charges within ten years of the offense and before the victim's hits 40 years. Practically, if the victim takes long to report the crime, it becomes difficult to execute. Some evidence might get distorted, or the defendant might decide to report the crime to the police.
Possible Defenses Against Lewd Acts With A Minor
Traditionally, children are believed not to tell lies on sexual abuse. Unfortunately, it is not always the case. Sometimes, they may be confused, coerced, or they are vindictive. Additionally, the law prohibits a child's consent from being used as a defense to lewd acts with minor charges. The law further explains that a minor cannot agree to commit illegal conduct. The law is structured to protect children, so an experienced orange county criminal lawyer can evaluate all circumstances before taking defensive measures. Here are possible legal defenses that our lawyers use:
Mostly the lewd acts with a minor case are determined by a child's credibility. It often happens where there's no physical confirmation. Our criminal lawyer will investigate thoroughly on the victim's background as well as interview close relatives and friends. Through experience, investigations have revealed minors' bias or being coached to accuse the defendant falsely. We have severally demonstrated such evidence to the court, and it successfully dismisses the prosecutors' entire case.
For instance, Danton faces charges with a PC 288. His 11-year old niece, Danielle, accuses him of touching her private parts inappropriately. After an investigation, it is clear that Danielle has always expressed her hatred towards her uncle Danton. She has always wanted to "teach him a lesson" and does not want to see him. The evidence is presented to the court; the charges against Danton are dismissed.
The Accuser Made a Mistaken Identification
There are times a child can be touched in the wrong places but gets confused on who is the culprit. Mostly it happens if the incident occurred in a dark place or the child was too young to understand. The defense investigates circumstances that led to the alleged crime. The facts collected should be able to show that the minor could not identify the perpetrator.
For instance, Joe and Jack are brothers and have a striking resemblance. Jack, the younger brother, takes advantage of his brother, Joe, as a private tutor and molests his students. One of the students' reports to the parent of Jack's misconduct, the parent corrects the child and blames it on Joe since he is the tutor. Joe is arrested and charged with lewd acts with a minor even though he did not commit the act. We can say that Joe was a mistaken identity.
The Touch Was Not Willful
The defendant is not guilty if he or she touched the victim accidentally. For the accused to be convicted, the contact must be willful. Either the accused caused the minor to touch him/ himself or another person.
For example, Scott loves playing with kids. He meets one at the park and starts tickling the child. He accidentally touches the child's vaginal area through her clothes. The touch was accidental and not intentional. Scott is, therefore, innocent.
The Minor is Past the Age Rule of the Crime
There are two types of sexual abuse under PC 288. First is lewd acts with a minor below 14 years. Second, is lewd acts with a minor who is 14 or 15 and at ten years difference with the accused. The accused is not guilty if both the accused and the victim have a ten-year difference. However, the accused might be charged with other penalties like statutory rape or sexual battery.
The Defendant Was a Victim of Illegal Police Conduct
Sexual crimes against children are always taken severely. Especially when the evidence is under PC 288, if the prosecution is brought in violation of the defendant's rights, our skilled criminal lawyer will argue the case and get the crime excluded. The police often violate defendants' rights by conducting a hot sear or seizure, misconduct like planted evidence, or entrapment.
The Touch Was Not Sexually Motivated
The law only prohibits a touch intended to arouse the minor or the defendant sexually. For example, Sarah, a swimming instructor, finishes her classes and tells the students to go and change. Nathaniel, who is twelve years old, refuses to go to the changing room and takes off his costume. Sarah sees a reddish lump on Nathaniel's penis. She takes a close look at the penis as she holds it. In this case, Sarah does not intend to arouse Nathan. Although she touches Nathaniel's private part, she is not guilty of the crime.
Sometimes the defendant uses lie detectors if they insist the allegations are false. The defendant is made to sit with four examiners from the defense team. If the accused is lying, the defense simply does away with the evidence and never discloses the results. If, on the other hand, the accused is being truthful, the results are taken to the prosecutor. The results have to be convincing enough such that the prosecutor decides not to convict an innocent person. Though the prosecutor will insist on the defendant taking another test with the police polygraph. The defendant must pass the test as well for the case to be wholly dismissed.
What The Prosecutor Must Prove
To be proved guilty of lewd acts with a minor, the prosecutor must prove beyond a reasonable doubt that you had an intent to commit the crime. The critical element of lewd acts with a minor is intent. Proving intent can be very challenging. Showing the defendant's action was intentional is even more challenging. The jury has to make a judgment considering all the circumstances. Factors that the panel must take into account include:
The defendant willfully touched the minor's body or caused the minor to come into contact with his body or that of someone else.
The act committed intended to appeal, arouse, or gratify his/her sexual desires.
The minor was below 14 years.
Whether there was a blood relationship with the victim
Keep in mind that touching does not necessarily have to be done on a bare skin to be charged as a crime. The unlawful touch can also be done over the clothing. Also, you are not required to become aroused during the offense incident. The intention of being excited or gratified is what is needed. In simple terms, the prosecutor does not need the evidence of the defendant being aroused. The primary evidence lies in the intent of the action.
How The Police Handle Lewd Acts With A Minor Accusations
The police dedicate a lot of resources to investigate sexual abuse on lewd acts with minors. The trained investigators have specialized departments where they specifically deal with child victims. The detectives search for facts and ensure they get a conviction.
The very first step they make is receiving the report of lewd acts with a minor. They interview the minor and record it. They also ask the relationship of the defendant to the victim. The minor is not forced to give information. The next step they take is getting the forensic evidence. It involves the minor's clothes and any other effects such as semen, hair, or saliva in the scene of the crime. The police later try to get additional possible victims.
The minor is asked to make a pretext call. The call is usually recorded, and the minor is directed on what to say. This is a way to make the accused confess. Anything that the accused says relating to the incident is a confirmation that indeed the act happened.
After the investigations with the minor, they now go for the accused of interrogations. They take time to interrogate the defendant. They can question the accused in a friendly manner outside the custody to lure him/her. They can also arrest the suspect and interview him in jail.
The police will try to get the accused to confess or get him to admit to having caused the crime. When the police approach you with such accusations, you should stand firm with respect, say no. Immediately contact an attorney. If you allow the police to have an interview with you, there's a likely-hood of making a statement that can be used against you in court.
If the defendant keeps on denying to have committed the act, the police use the polygraph examination. The tests are usually done in the police stations. The police have no right to force the accused to take the test. However, the polygraph examination is not applicable in courts. If the defendant takes the tests and passes, it is a confirmation that the accused is innocent.
Related Offenses Under The Statute
Various sexual offenses are charged along with Penal Code 288. Some attract more significant and other lesser penalties:
PC 288(a) involves oral copulation with a minor. It is a crime for adults to have oral sex with a child. The offense is charged as a felony. The punishment ranges from 3-12 years in prison.
PC 288.2 involves sending pornographic material to a minor. The intention is to arouse sexual feelings of the minor or that of the accused. The crime is charged as a wobbler.
PC 288.3 involves communicating with a child to commit a felony. The defendant may text, call, or email a minor to commit lewd acts of rape. The crime is charged as a felony of up to 3 years in state prison. It also triggers registration as a sex offender.
PC 288.4 involves luring to meet with a minor for lewd acts. The defendant may lure a minor into meeting him for a sexual encounter. The arrangement is charged as a wobbler. If the victim went for the meeting, the crime is translated to a felony, and the penalty is four years in county jail.
PC 288.5 involves continuous sexual abuse with a minor. It is where the defendant engages in lewd acts for three months. The convict faces a penalty of 6-16 years in county jail.
PC 288.7 involves sex interaction with a minor below ten years. A person engaging in sex with a ten-year-old is charged with a felony. For sexual intercourse, the penalty is 25 to life years in prison. For the oral copulation, the penalty is 15 years to life in prison.
PC 311 involves child pornography - The law prohibits the distribution of nudes to minors. The defendant might be charged with possessing child pornography and molestation. The penalty for this crime is substantial fines with a sentence to incarceration.
PC 207 involves kidnapping. The accused lures the minor to accompany him to a particular destination to engage in lewd acts. The kidnapping penalty is 5-11 years in prison.
Find an Orange County Criminal Lawyer Near Me
Having the right attorney at your side can make a tremendous impact on your life. If you or your loved one is charged with lewd acts with a minor, you need to contact the Orange County Criminal Lawyer right away. We aim at proving the allegations against you are wrong and ensure no evidence exists to support the charges. Call us now at 714-262-4833 and schedule a consultation with our lawyers. We have dealt with numerous lewd acts with minor crimes, and our records are backed up by successful dismissals and reduction of penalties.