When it comes to children, a misunderstanding or false accusation can lead to serious criminal prosecutions which could result in a long prison sentence among other severe penalties. California, and all of the United States, has grown increasingly cautious about their children over the past few decades. Laws against lewd or lascivious acts with a child are a major priority for law enforcement in San Diego and thoughout California.

The zealous protection of our children in our socieity has brought about increased, and sometimes unwarranted, criminal prosecutions for people accused of various acts. A false accusation against a man, especially teachers, parents or relatives, can result in severe repurcussions, and children might make accusations without considering the full consequences of their actions. If you have been accused of committing lewd acts with a child, or are under investigation, you need to contact a criminal defense lawyer immediately.

Defense Attorney for Lewd Acts with a Child in San Diego

Being accused of a crime you did not commit, or did not intend to commit is heart-wrenching. You see your colleagues, friends and family turn away from you and you know that their trust in you will never be fully restored, even if you are found innocent. However, the best way to combat this outcome is to employ an experienced defense attorney immediately to squash rumors of wrongdoing and fight charges in court.

Michael Cindrich is an experienced criminal defense attorney with decades of trial practice under his belt. He’s defended clients accused of all types of sex crimes including rape, sexual battery, statutory rape, and crimes related to younger victims.

The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City and La Mesa, and of course San Diego proper.

Find out your legal options today by calling The Law Offices of Michael E. Cindrich at (619) 262-2500.

Overview of Lewd or Lascivious Acts with a Child in California

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Lewd or Lascivious Acts with a Child Under California Law

California Penal Code Section 288 governs offenses involving lewd or lascivious acts with a child. This law criminalizes acts committed with the intent to arouse, appeal to, or gratify the sexual desires of either the perpetrator or the child. The law applies to acts involving children under the age of 14, as well as children aged 14 or 15 when the accused is at least 10 years older than the child. The law includes different degrees of offenses depending on the circumstances, such as the use of force or fear, the presence of a caretaker relationship, or whether bodily harm was inflicted.

The following are a few key terms under California Law:

  • Lewd or Lascivious Act: Any act that involves touching a child or causing a child to touch themselves or another person, performed with the intent to arouse or gratify sexual desires. The touching may occur through clothing or on bare skin.
  • Willfully: Acting deliberately or on purpose, without requiring intent to break the law or cause harm.
  • Force: Substantially greater or different physical force than what is inherent in the act itself, as required under Penal Code Section 288(b).
  • Duress: Similar to extortion, a direct or implied threat of force, violence, hardship, or retribution that would cause a reasonable person to submit to something they would not otherwise do.
  • Dependent Person: Someone with a physical or mental impairment that limits their ability to protect themselves, as further defined in Penal Code Section 288(f)(3).
  • Caretaker: Individuals responsible for providing care to dependent persons, including employees or volunteers of care facilities, as outlined in Penal Code Section 288(f)(1).

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Key Elements in a Lewd Acts with a Child Case

For a defendant to be found guilty under Penal Code Section 288, the prosecution must prove specific elements beyond a reasonable doubt.

For charges under Penal Code Section 288(a) (lewd acts on a child under 14 years):

  1. The defendant willfully touched any part of a child’s body, either directly or through clothing, or caused the child to touch themselves or another person.
  2. The act was committed with the intent to arouse, appeal to, or gratify the sexual desires of the defendant or the child.
  3. The child was under 14 years old at the time of the act.

For charges under Penal Code Section 288(b)(1) (lewd acts by force or fear):

  1. The defendant touched or caused the child to touch as described above.
  2. The act involved the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
  3. The child was under 14 years old.

For charges under Penal Code Section 288(c)(1) (acts involving children aged 14 or 15):

  1. The defendant committed the act as described in Section 288(a).
  2. The victim was aged 14 or 15.
  3. The defendant was at least 10 years older than the child.

Jury instructions, such as CALCRIM 1110 and 1111, guide jurors on these elements, ensuring that every aspect of the charge is considered before reaching a verdict.

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Lesser and Related Offenses to Lewd Acts with a Child

Certain offenses may be considered lesser included offenses under Penal Code Section 288. These include crimes that share some elements of lewd acts but are distinct in their severity or specific requirements. Examples include:

  • Attempted Lewd Acts: Under Penal Code Sections 664 and 288, attempting but not completing the act may result in a lesser charge.
  • Annoying or Molesting a Child: Penal Code Section 647.6 applies to conduct aimed at annoying or molesting a child under 18, even without physical contact or intent to gratify sexual desires.

These lesser offenses may be charged if the prosecution cannot prove all elements of a Section 288 violation or as part of a plea negotiation.

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Penalties for Lewd or Lascivious Acts with a Child

The penalties for violating Penal Code Section 288 depend on the specific subsection under which the defendant is charged.

  • Section 288(a): For lewd acts on a child under 14, the punishment is imprisonment in state prison for 3, 6, or 8 years.
  • Section 288(b)(1): When the act involves force, violence, duress, menace, or fear, the penalty increases to 5, 8, or 10 years in state prison.
  • Section 288(c)(1): For acts involving children aged 14 or 15, where the defendant is at least 10 years older, the punishment can be imprisonment in state prison for 1, 2, or 3 years or in county jail for up to 1 year.
  • Section 288(i): If bodily harm is inflicted on the victim, the defendant may face life imprisonment with the possibility of parole.

Additional penalties can include:

  1. Fines of up to $10,000
  2. Mandatory registration as a sex offender
  3. Loss of employment, housing, and parental rights
  4. Establishment of protective orders against you

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Examples of Lewd Acts with a Child in California

Examples of lewd acts with a child under Penal Code Section 288 vary depending on the circumstances. These can include, but are not limited to:

  1. Touching the Child: A person deliberately touching a child’s body with the intent to arouse sexual desires, even if the touching occurs over clothing.
  2. Causing the Child to Touch: Encouraging or coercing a child to touch themselves, the accused, or another person for sexual gratification.
  3. Acts Involving Force or Fear: Forcing a child to engage in such acts using threats, violence, or intimidation, as outlined in Penal Code Section 288(b)(1).
  4. Caretaker Abuse: A caretaker exploiting their position of authority to commit lewd acts on a dependent child or person under their care, as described in Section 288(f).
  5. Age-Difference Cases: A 25-year-old engaging in inappropriate acts with a 14-year-old, violating Section 288(c)(1).

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Common Defenses to Charges Involving Lewd Acts

Effective defenses against charges under Penal Code Section 288 depend on the specifics of the case but may include:

  1. False Accusations: Allegations may arise from custody disputes, personal vendettas, or misunderstandings, especially in contentious family situations. Proving innocence involves collecting evidence that challenges the accuser’s credibility, highlighting inconsistencies, or demonstrating lack of intent.
  2. Lack of Intent: The prosecution must prove the act was committed with the intent to arouse sexual desires. If intent cannot be demonstrated, the charge may not hold.
  3. Mistaken Identity: Eyewitness errors or lack of physical evidence could lead to wrongful accusations.
  4. Inconsistent Testimony: Highlighting contradictions in the child’s account or lack of credibility in their testimony can weaken the prosecution’s case.
  5. Constitutional Violations: Evidence obtained through unlawful searches, improper questioning, or coerced confessions may be inadmissible.

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Lewd Acts Charges FAQ

Defendants facing these charges often have specific concerns unique to this offense:

  1. Can a child’s consent be used as a defense?
    No, a child’s consent is not a legal defense under Penal Code Section 288. Under state and federal law, children cannot legally consent to sexually activity.
  2. Does mistaken belief about the child’s age matter?
    No. While some states provide the affirmative defense that one must know, or be able to reasonably know, that the child was underage, California law does not allow for a mistake of fact defense regarding the child’s age for completed acts. However, it may apply to attempted lewd acts.
  3. Can charges be dropped if the alleged victim refuses to testify?
    Not necessarily. Prosecutors may proceed using other evidence, such as recorded interviews or corroborating testimony.
  4. What if there was no physical contact?
    Physical contact is not always required. Causing a child to touch themselves or another person with the requisite intent can suffice.
  5. Can a parent lose costody of their children?
    In some cases, yes. Convictions can lead to significant challenges in family court, including loss of custody or visitation rights, as well as potential restraining orders against your own children and family.

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Additional Resources

Child Abuse and Neglect Reporting Act – This document outlines the provisions of California’s Child Abuse and Neglect Reporting Act (Penal Code § 11164-11174.4). It defines child abuse, mandatory reporting requirements, and the obligations of professionals and agencies. The law aims to protect children from harm by ensuring the identification, investigation, and prevention of abuse and neglect.

Definitions of Child Abuse and Neglect – California – This resource by the Child Welfare Information Gateway provides definitions and criteria for child abuse and neglect under California law. It includes categories like physical abuse, neglect, sexual exploitation, and emotional harm. The document also outlines standards for reporting abuse and exceptions to dependency findings.

California Child Welfare Indicators Project – This website by UC Berkeley offers data and insights into California’s child welfare system. It includes statistics on child abuse reports, foster care, and outcomes for children in care. Professionals and policymakers can use the resource to understand trends and improve child welfare services.

Child Abuse Central Index Information – The California Department of Justice page explains the Child Abuse Central Index (CACI). It covers the index’s purpose, how reports are filed, and how individuals can verify or dispute records. The resource is relevant for agencies, legal professionals, and individuals seeking information about child abuse reporting records in California.

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Hire a Defense Attorney for Lewd or Lascivious Acts with a Child in San Diego

The Law Offices of Michael E. Cindrich defends people accused of sex crimes throughout San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City and La Mesa, and San Diego proper.

Contact Michael Cindrich today for a free consultation at (619) 262-2500.