Lewd or Lascivious Acts with a Child Under 14 (Penal Code § 288(a)) in California

Being charged with lewd or lascivious acts with a child under California Penal Code § 288(a) is among the most serious criminal allegations a person can face. These charges carry severe penalties, including substantial prison time and possible lifetime sex offender registration.

At David P. Shapiro Criminal Defense Attorneys, we understand the gravity of these allegations and their potential impact on your life, freedom, and reputation. If you’re under investigation or have been charged with this offense in San Diego, contact us immediately for a legal consultation to understand your options and begin building your defense.

What is California Penal Code § 288(a)?

California Penal Code § 288(a) makes it a felony to commit a lewd or lascivious act on a child under 14 years of age. The statute states:

“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 punished by imprisonment in the state prison for three, six, or eight years.”

This law is designed to protect young children from sexual abuse and exploitation. Unlike some other sex crimes that require specific sexual acts, PC § 288(a) criminalizes a broad range of conduct when performed with sexual intent.

Elements Prosecutors Must Prove

For a conviction under Penal Code § 288(a), prosecutors must establish beyond a reasonable doubt:

1. You willfully touched a child’s body (either directly on the skin or through clothing)
2. The child was under the age of 14 at the time
3. You acted with sexual intent (the touching was done with the intent to arouse, appeal to, or gratify sexual desires)

It’s important to understand that each of these elements must be proven, and if the prosecution fails to establish any one element, you cannot be convicted of this specific offense.

What Constitutes a “Lewd or Lascivious Act”?

A common misconception about PC § 288(a) is that it only applies to touching of intimate or private parts of a child’s body. In reality, the law is much broader:

• Any touching of a child’s body can qualify if done with sexual intent
• The touching can be over or under the clothing
• The touching doesn’t need to be prolonged – even momentary contact is sufficient
• There is no requirement that the child be aware of the sexual nature of the touching

Examples of acts that can constitute violations include:

• Touching a child’s arm, leg, back, or hair with sexual intent
• Having a child touch the defendant’s body with sexual intent
• Having a child touch their own body with sexual intent
• Kissing a child with sexual intent

The key factor is not the specific body part touched or the nature of the physical contact but rather the sexual motivation behind the touching.

Understanding the “Sexual Intent” Requirement

The “sexual intent” requirement is central to PC § 288(a) charges. The prosecution must prove that the touching was motivated by a desire to arouse or gratify sexual desires—either your own or those of the child.

Courts often look to surrounding circumstances to determine intent, such as:

• The relationship between the adult and child
• The manner and timing of the touching
• Statements made before, during, or after the touching
• Pattern of similar behavior
• Location and setting of the touching (public vs. private)
• Whether the touching was necessary for legitimate caregiving purposes

This element distinguishes innocent touching from criminal conduct. For example, a parent bathing a young child or a doctor examining a patient involves touching that isn’t motivated by sexual desire.

Penalties for Violating PC § 288(a)

A conviction under Penal Code § 288(a) carries severe consequences:

Prison Sentence

• Standard sentencing: 3, 6, or 8 years in state prison
• The judge selects one of these three terms based on aggravating and mitigating factors

Sex Offender Registration

• Registration as a sex offender under California’s tiered registry system for either 20 years, or if other criteria is met, for life.
• Public disclosure of offender information via the Megan’s Law website
• Regular in-person registration with law enforcement
• Notifications when moving or changing employment

Additional Consequences

• Additional fines up to $10,000
• Strike under California’s Three Strikes Law, enhancing penalties for future convictions
• Parole restrictions limiting where you can live and work
• Immigration consequences for non-citizens, including deportation
• Loss of professional licenses
• Restrictions on employment, especially jobs involving contact with children
• Housing limitations due to residency restrictions for sex offenders
• Social stigma and permanent damage to reputation
• Civil liability from the victim and potential lawsuits

Aggravated Versions of the Offense

California law provides for enhanced penalties in certain circumstances:

Lewd Acts by Force or Fear (PC § 288(b)(1))

If the lewd act is committed by using force, violence, duress, menace, or fear of immediate bodily injury, the penalties increase to 5, 8, or 10 years in state prison.

Bodily Harm (PC § 288(i))

If you personally inflict bodily harm on the victim during the commission of the offense, the penalty increases to life imprisonment with the possibility of parole.

Multiple Victims

If charged with offenses against multiple victims, each count carries separate penalties that can run consecutively, potentially resulting in decades of imprisonment, potentially life.

Statute of Limitations

Understanding when charges can be filed is critical. For PC § 288(a) offenses:

• For offenses committed after January 1, 2017: No statute of limitations (charges can be filed at any time)
• For older offenses: Generally, charges must be filed before the victim’s 40th birthday
• Various exceptions may apply that can extend or toll (pause) the limitations period

Due to these extended timeframes, accusations can sometimes arise many years after the alleged incident, creating significant challenges for the defense.

Common Defense Strategies

Defending against PC § 288(a) charges requires a strategic, thorough approach. Potential defenses include:

False Accusations

Unfortunately, false allegations do occur in child molestation cases. Common scenarios include:

• Children influenced by suggestive questioning
• Custody disputes where one parent coaches a child
• Misinterpretations of innocent contact
• Revenge or retaliation motives

An effective defense often involves demonstrating inconsistencies in the allegations, uncovering motives to fabricate, or showing how improper interview techniques may have influenced a child’s testimony.

Lack of Sexual Intent

Even if touching occurred, it may have been innocuous or for legitimate purposes such as:

• Hygiene or healthcare
• Normal parental care
• Accidental contact
• Educational purposes

Expert witnesses can sometimes help establish that the behavior in question was consistent with non-sexual motivations.

Mistaken Identity

In some cases, the child may have correctly reported abuse but incorrectly identified the perpetrator, particularly if:

• The abuse occurred when the child was very young
• The identification process was suggestive
• The child was pressured to name someone

Constitutional Violations

Evidence obtained through violation of your constitutional rights may be excluded, including:

• Statements obtained without proper Miranda warnings
• Evidence from illegal searches
• Coerced confessions

Insufficient Evidence

The prosecution must prove each element beyond a reasonable doubt. A thorough defense investigation may reveal:

• Lack of physical evidence
• Inconsistent statements
• Improbable allegations
• Alternative explanations for physical findings or behavioral changes

The Investigation and Court Process

Understanding the typical progression of these cases can help you prepare for what lies ahead:

Initial Investigation

• Reports to police, Child Protective Services, or mandatory reporters
• Initial interviews with the child and witnesses
• Medical examinations (if appropriate)
• Collection of physical evidence (if available)
• Attempts to obtain admissions of the accused by law enforcement using secretly recorded calls or monitored text messages

Pre-Charging Phase

• Forensic interviews of the child by specialists
• Review of evidence by prosecutors
• Decision to file formal charges

Court Proceedings

• Arraignment and bail determination
• Preliminary hearing (or grand jury indictment)
• Pretrial motions (challenging evidence, requesting psychological evaluations)
• Plea negotiations or preparation for trial
• Trial (usually jury trial)
• Sentencing (if convicted)

Special Considerations for Child Witnesses

California law includes special provisions to protect child witnesses in these cases:

• Testimony may be taken via closed-circuit television
• Support persons may accompany children
• Special hearsay exceptions may apply
• Courts must prevent unnecessary psychological harm to child victims

Important Case Factors That Can Affect Outcomes

Several factors can significantly impact how these cases are charged and resolved:

Age of the Child

Generally, the younger the child, the more seriously prosecutors pursue the case and the harsher the potential penalties.

Nature and Frequency of Conduct

More invasive conduct or repeated incidents typically result in multiple charges and enhanced prosecution efforts.

Corroborating Evidence

The presence or absence of physical evidence, witnesses, or prior disclosures can strengthen or weaken the prosecution’s case.

Defendant’s Prior History

Prior accusations or convictions, especially for similar offenses, dramatically affect both charging decisions and potential outcomes.

Child’s Testimony

The clarity, consistency, and detail of a child’s account often plays a crucial role in these cases.

Frequently Asked Questions

Is the mistake of age a defense?

Generally no. A good-faith belief that the child was 14 or older is not typically a valid defense to PC § 288(a) charges.

Can these charges be reduced to a misdemeanor?

No. PC § 288(a) is a straight felony that cannot be reduced to a misdemeanor.

What if the touching was accidental?

The “willful” requirement means accidental touching is not a violation. However, proving the accidental nature can be challenging.

What if the child consents?

Children under 14 cannot legally consent to sexual contact. “Consent” is not a valid defense.

Can I be charged if there’s no physical evidence?

Yes. Many convictions are based primarily on witness testimony without physical evidence.

Will the child have to testify in court?

Yes, at trial, though various accommodations might be made to minimize trauma. In some cases, the child’s recorded forensic interview might be admissible under hearsay exceptions.

Why You Need an Experienced Defense Attorney

Charges under PC § 288(a) demand specialized legal representation because:

1. High stakes: The penalties include substantial prison time and lifetime consequences
2. Complex evidence issues: Cases often involve child testimony, hearsay exceptions, and expert opinions
3. Emotional factors: The nature of the accusations creates unique challenges for fair evaluation of evidence
4. Specialized defense needs: Effective defense often requires experts in child psychology, forensic interviewing, and medical evaluation

How David P. Shapiro Criminal Defense Attorneys Can Help

Our San Diego defense team brings crucial advantages to your case:

• Experience with sex crime defenses and specifically with PC § 288(a) cases
• Strategic approach to case evaluation and defense planning
• Access to experts in child psychology, forensic interviewing, and medical examination
• Understanding of prosecutorial tactics in child molestation cases
• Ability to navigate sensitive cases with discretion and professionalism

We begin by conducting a thorough evaluation of the evidence, identifying potential defenses, and developing a strategic plan tailored to your specific situation.

Contact a San Diego Defense Attorney Today

If you’re facing charges under California Penal Code § 288(a), immediate legal representation is critical. These cases move quickly, and early intervention by an experienced attorney can make a significant difference in the outcome.

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.