Facing allegations of engaging in lewd conduct with a minor can cause severe consequences in your life. The law takes such incidents very seriously because they involve young minors who are easily affected by their early-life experiences. Lewd conduct generally relates to sexual offenses, and have penalty provisions in the California Penal Code. While there are general provisions for lewd conduct, the Penal Code has also included a different and specific offense relating to minors. Therefore, facing such charges may attract more severe penalties than when the offense is against an adult. When charged with the crime, you may have a difficult time understanding the process that follows your arrest or summons to court. Additionally, being a defendant may attract a lot of prejudiced attention against you. The situation may be even more frustrating when you are genuinely innocent.
The California Criminal Lawyer Group can help you combat the allegations and charges brought against you. Our team consists of well-experienced lawyers who have vast knowledge in offering criminal defenses. Moreover, we delve into in-depth research to find the best solutions and legal advice, specially modified to suit your case.
The Definition of Lewd Acts With a Minor
Lewd conduct, also known as lascivious behavior, involves engaging a child in indecent sexual conduct. Some of the acts that an offender may make a child indulge in include touching their bodies or touching the offender’s body. An accused person may also forcefully caress the child’s body, or force him or her to sit on the accused’s lap and engage in indecent touching. Moreover, lewd conduct with a minor may escalate to other forms of molestation. For example, the forceful touching of private parts translates to lascivious behavior as well.
A minor is any child who is fourteen years or below, as provided for under section 288(a) of the California Penal Code, in defining this crime. A person in this age group is considered a young child by law, and cannot consent to any acts that involve sexual behavior. Thus, the accused person may face higher penalties if the child was significantly younger than fourteen years.
California Law on Lewd Acts With a Minor
The law in California has specified provisions that expressly prohibit engaging in indecent sexual acts with a person below fourteen years. Section 288(b) criminalizes the act of engaging a minor into lewd conduct by use of threats, coercion, fear or force. It is only natural that if you were to use violence to scare the child into accepting your probes, the judge will issue significant penalties. Threats used on the child may include statements like intending to beat the child if he or she refuses to accept to perform indecent acts. Other forms of coercion may also involve duress on the child by denying him or her basic needs like food and water until he or she does what you ask. Also, scaring the child by lying of an existing problematic situation amounts to coercion. The defendant may and providing the engagement in indecent acts as the only solution. This trick often works when accused persons target younger children who do not have sufficient knowledge of truthful facts.
Regardless of the type of force used to get the minor to accept touching himself or herself indecently, the section offers the same penalty to an offender. It is more aggravated because of the crude nature used by the accused on the minor.
Additionally, section 288(c) creates the exact age specifications for the minor involved in lewd acts. The provision makes it a crime to touch or otherwise engage a child who is fourteen or fifteen years in indecent sexual activities. Additionally, the offender is eligible to face charges if the prosecutor can prove that he or she has a ten year age gap with the child in question. The age difference could also be more than ten years, but it will attract similar penalties as provided in the Penal Code. An accused person facing lewd conduct charges may face varying punishments, especially if the child was way younger than the stipulated age.
Lastly, section 288.5 makes it a crime to engage in lewd acts with a minor on multiple occasions. If the abuse occurs more than three times within three months of the first incident, the case is aggravated and may bear dire consequences to the offender. Children who face repeated sexual abuse are frequently under the care of the accused person. He or she may be the babysitter, family friend, or even a relative. Often, such a person has a responsibility to take care of the child, and that is how he or she may gain access to the victim regularly.
It is important to remember that while a claimant may bring a suit against you through the prosecutor, the law has several time limitation clauses. Typically, an aggrieved person has a ten-year open period after turning the age of majority-18 to bring forth a suit. While the court generally allows late claims to also proceed under special circumstances, your San Diego Criminal Attorney Law Firm lawyer can raise this concern of late application when you are inevitably involved in this criminal accusation.
Elements of The Crime a Prosecutor Must Prove
To secure a proper conviction, the prosecutor handling your case must perform due diligence and ensure that he or she covers all areas of fault. The effort in ensuring that charges pressed against you are based on accurate facts is to ensure that the hearing prevails based on the due process of law. Thus, the prosecutor must prove all the key elements of the crime for a judge to issue his or her verdict. Typically, in a hearing, the two main elements required are:
- The actual act or omission, also known as the Actus Reus - It covers all actions and decisions that the defendant made. These acts should be unlawful and prove that the accused broke the law.
- The criminal intention is also called the Mens Rea. The element is critical in determining the final verdict of a case because it proves that the accused intended his or her actions. However, because it is not easy to tell what a person is thinking, criminal intent is derived from the circumstances surrounding the accused’s conduct.
Specific to lewd acts with a minor, the prosecutor must prove that:
The Accused Intended to Get Sexual Arousal From the Lewd Acts With a Minor
The criminal intent is critical for the prosecutor to prove, because if the contrary happens, the judge may easily dismiss the case based on its absence. The prosecution must show that the accused wanted to get aroused by forcing the minor to touch him or her or take part in other sexualized actions. Typically, the kind of reaction you exhibit as the lewd conduct is ongoing can become substantial evidence to the prosecutor’s advantage. Often, the judge will find it immaterial that the child also derived sexual pleasure from the lewd conduct, because you as the adult are the one responsible for initiating the action. Therefore, most of the evidence and witness statements produced will focus on the accused’s misconduct. The case becomes difficult if the indecent actions happened in a room or location with live surveillance cameras because there is concrete video evidence of the crime. However, your criminal lawyer will do the best he/she can to ensure that any possible defenses to the scenarios at hand prevail.
The Defendant Wilfully Engaged in The Lewd Acts
Apart from proving your actual involvement in the lascivious behavior, the prosecutor must prove that you and the minor in question engaged in specific actions. Firstly, there must be sufficient evidence to show that the accused touched any part of the child’s body. Thus, it does not necessarily have to be the minor’s private parts, although such a factor is often brought into question. Any inappropriate touching of the neck, thighs, or other parts can consist of lewd actions because everybody is entitled to personal space.
Alternatively, the accused may force the minor to touch his or her own body in pursuit of pleasure. Commonly reported cases involve forcefully trailing the child’s hand through the defendant’s body, and especially on the privates. The minor may also do it voluntarily or as a way to succumb to threats and coercion from the offender, to avoid any violence or force that an accused may unleash. It is immaterial whether the child minded touching the defendant or not, especially if the accused is responsible for initiating any contact.
Moreover, sometimes the accused may order the child to touch himself or herself in a way that appeases the defendant’s sexual fantasies. As long as the child commits such acts under the offender’s commands or direction, it will amount to a lewd act, and he or she still carries the blame. The law also pays no regard to whether the minor had clothes on or not during the acts of indecency because an accused can still touch various body parts through thinly lined garments. All that matters is that there was inappropriate body contact initiated by the accused to the child.
The Minor Was Fourteen Years or Below
The prosecutor may be very keen to ensure that you receive the maximum penalty for the crime you face if the judge finds you guilty. He or she is aware that for such a penalty to be issued against you, the minor’s age should fall well within the range of fourteen years or younger. The specifications are strictly used to determine whether the defendant will face additional charges for causing immense damage to the minor’s childhood experience. Hence, the prosecution’s side produces all relevant documents that aim to prove the child’s age as legitimate.
Despite all these efforts from the prosecutor, your criminal lawyer can help rebut the presumption of the minor’s age, especially if there is concrete evidence to support your claims. For example, if you have convincing evidence to prove that the minor in question is older than the prosecutor claims, you may prove it by equally providing accurate documentation. However, a defense of mistake of age cannot suffice in court. The weakness in the defense arises because you are expected to have known the person in question reasonably well, to determine whether or not the person is a minor. Furthermore, lewd conduct with a person in any age group is still an offense.
The Accused Had Frequent Access To The Minor
In instances where the accused is involved in a crime of continuous lewd acts with a minor, the prosecutor must prove that he or she could constantly meet the minor. He or she must show that the accused either lived with the minor or had permission to access the child’s premises constantly. Such proof is easily accessible by gathering the facts of the child’s daily lives and introducing other family members. The witnesses play a key role in explaining the kind of relationship expected of the accused person vis a vis what the defendant ended up doing to the minor. Also, a prosecutor heavily relies on any accounts where a witness may have found you in the process of coercing or forcing the minor to touch your body, or you touching theirs. Despite the statements from various witnesses as evidence, engaging with your defense attorney guarantees you a better chance of raising defense and proving that the multiple forceful acts of sexual indecency.
Penalties for Lewd Acts With a Minor
If the judge finds you guilty of the offense of lewd acts with a minor, he or she can issue several punishments to deter future acts. There are various penalties available for the different variations of the criminal act. If you are charged with the offense created under section 288(a), it translates to a felony. An accused person may face eight years in state prison or pay a fine amounting to $10,000. Additionally, the judge may issue both penalties on you if the circumstances of your case involve multiple wrongful acts, or aggravating violence targeted to the minor.
Secondly, where the defendant engaged in indecent acts with a minor by forcing him or her into the submission as stated in section 288(b), the penalties are more severe. They become more aggravated because using threats, duress or physical violence translates to separate offenses all together because they are all unlawful actions. Moreover, subjecting a minor to such force is considered unreasonable owing to the significant difference in age and strength. Therefore, a guilty defendant may face imprisonment for five to ten years. Additionally, he or she may also have to pay a $10,000 fine or complete both penalties at the judge’s discretion.
The third penalty issued under the Penal Code involves misconduct with a minor, with regards to his or her age. Due to the different dynamics involved in age and giving consent, lewd conduct with a minor who fits the age description translates to a wobbler crime. Therefore, the charges could be misdemeanors or felonies. The determination depends on several factors, like whether the minor’s age was, in fact, older than was presented by the prosecutor. If charged as a felony, the accused faces three-year imprisonment in state prison. As a misdemeanor, the crime attracts one-year imprisonment in the county jail. The difference between a county jail and a state prison is in the restrictions and severity in conditions. In the state prison, the accused faces more restrictive measures like limited visitation rights.
Moreover, the law provides an added penalty that requires you to register as a sex offender with the relevant authorities, according to section 290 of the California Penal Code. Such a requirement is highly detrimental to your personal and social status, as the record appears in all identity searches that people may conduct. Moreover, it could cost you valuable job opportunities, which may be unfair. Nevertheless, it is paramount to make the registration. Ignoring the regulations and failing to register will attract severe penalties. Under section 290.018(b), you could end up in prison for three years.
Aggravating Factors That Could Increase Penalties Issued
Apart from the specific factors mentioned in the statutory provisions, several other actions or circumstances could increase the punishments you receive significantly. Most of them have moral standing but are highly applicable in court as matters of consideration. They include:
An Offender Having Family Relations With The Minor
Where an accused person is related to the aggrieved child, he or she may suffer added prejudice and penalties. The factor aggravates the case because such a person is often entrusted with the minor’s custody and ends up taking advantage of such a privileged position. Moreover, since the offender is a relative or even a member of the nuclear family, he or she may have access to the victim at any time. Thus, such accused persons are prone to committing multiple abusive lewd actions with the minor. They may also coerce the child and use threats to keep the child from reporting any actions to someone who might help. With all these factors in consideration, the presiding judge may decide to increase your penalties.
The Offender Injured The Minor
Causing injury is inevitable, especially if force was in play to coerce the minor into accepting to commit the indecent actions. An offender may beat up the minor or strike him or her to try and scare the child. Consequently, Such a child victim may sustain a severe personal injury that requires medical attention. Also, the injury may extend to mental disturbance arising from the traumatic experience of forceful sexual conduct. In this case, the child may suffer from severe post-traumatic stress disorder. If an accurate medical report shows that such a condition arose from the lewd acts, the accused person may find himself or herself in trouble.
Defenses For The Offense of Lewd Conduct With a Minor
The due process of law, as well as the rules of natural justice, also afford you several defenses to justify your actions. Your San Diego Criminal Attorney Law Firm Lawyer will work on several defenses that you could raise to help you win your case, and get an acquittal. The defenses are:
Absence of Criminal Intent
Since the law requires a proper intention to have sexual satisfaction by involving a minor in lewd acts, your lawyer could raise the defense of lack of intention. Such an argument is useful when your act of touching the minor was a genuine accident involving bodily contact. Your attorney can make a successful argument by proving that the circumstances leading to the crime were too remote to conclude that there was any intention to receive pleasure.
A malicious third party may sometimes instigate a suit against you based on false allegations as a mode of revenge or pure malice. In doing so, the person may train the minor involved in your case to give false accounts of events as witness statements, to put you on the wrong side of the law. If you genuinely have no part in engaging a minor in sexual misconduct, your lawyer will successfully raise this defense. However, he or she has to be diligent enough to prove your claims of alibi. Such proof requires you to prove that you were not in the alleged scene of the crime at the time stated, and show evidence of where you were.
The defense of intoxication only applies if you were involuntarily drugged, such that you had no control over the events that occurred later. Also, intoxication as a defense will only suffice if your lawyer can prove that you were so drunk that you did not know what you were doing while asking the minor to touch you or himself/herself. Additionally, your level of involuntary intoxication must be so high that you did not know what you were doing was wrong.
There Was No Actual Physical Contact
If you did not touch the minor yourself, you could raise the defense on a technical basis. The rationale for using this argument is that you will not have fulfilled all the required acts for a proper conviction to ensue. However, the judge may be reluctant to accept the defense because you might have still forced the child to engage in the lewd acts, especially by coercion. Nevertheless, it is a valid option.
Contact a Criminal Defense Attorney Near Me
Facing criminal charges can take a toll on you, especially if you are unfamiliar with the stipulated requirements and evidence filed against you. It is always advisable to seek the help of a criminal attorney, to increase the chances of your success. We are dedicated to finding appropriate legal solutions to all our clients at the California Criminal Lawyer Group. If you are currently facing criminal charges of lewd conduct with a minor, call us today at 408-622-0204.
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