Penal Code 288 PC – Lewd Acts with a Minor Under 14
California Penal Code 288 PC prohibits lewd and lascivious acts with a child, known as child molestation. This crime is broadly defined as any touching of a child under the age of 14 when done for sexual purposes.
PC 288 says, "(a) 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."
Probably the most significant factors that the prosecutors will look at are the age of the child and the age of the defendant at the time the lewd act allegedly happened.
The younger the child, the older the defendant, the more likely the prosecutors will seek a lengthy prison sentence for that particular defendant. So, age is one huge factor when it comes to these lewd and lascivious acts against a child.
The number of times the defendant perpetrates a PC 288 violation against a child will also be a significant factor that the prosecutors consider.
If the child is young enough and the defendant does enough 288a acts, the case can become a 288.5 case with a pattern of behavior, and the defendant could face a lifetime in prison under those circumstances.
So, once you talk about the number of acts, the next thing you have to look at in these lewd and lascivious cases is the nature of the act. In other words:
- Is it consensual or non-consensual?
- Is it violent?
- Is the child hurt in any way?
- Is the child threatened in any way?
- What is the relationship between the child and the perpetrator?
These are all significant factors that judges and prosecutors consider in these types of offenses, and they will all be considered in determining how much jail time a defendant will receive. A common related crime is arranging a meeting with a minor for lewd purposes under California Penal Code 288.4 PC.
Will Defendant Commit Another Similar Sex Crime?
Another significant factor when it comes to a PC 288a case is that the defendant is likely to commit this type of sex crime again.
A lot of times, prosecutors and judges are looking to see a Penal Code Section 288.1 report, which is a report by a psychiatrist assessing the dangerousness level of a particular defendant and assessing whether this defendant will commit another similar act. Are they likely to be a recidivist?
There's a static 99 test that can be performed in these cases, even without interviewing the defendant. Additionally, a report by a psychiatrist who is familiar with these types of defendants and cases can provide insight into whether the defendant's behavior is an aberration or likely to recur.
Once you weigh all these factors and look at the defendant's criminal record, the prosecutors can make an offer in the case. At this point, the defense attorney plays a crucial role.
They can advise the defendant on whether to accept the offer, make a counteroffer, or even appeal to the judge for a better offer than what the prosecutors suggest. This negotiation process is a key part of the legal system and can significantly impact the outcome of the case.
Once these factors are considered, the criminal defense attorney plays a crucial role in identifying any weaknesses in the case. Prosecutors undoubtedly take these issues into account when deciding how to handle the case.
If the prosecutors have a weak case, meaning they lack substantial evidence to prove the defendant's guilt, or if there are problems of proof, such as conflicting witness testimonies or lack of physical evidence, these factors will all be considered when deciding how to resolve the case.
If the defendant loses the case, that's undoubtedly going to be a significant factor that would weigh against trying to be very severe. In this context, 'very severe' refers to the prosecutors seeking a high sentence. If the defendant is likely to receive a severe sentence, they might be more inclined to take the case to trial and try to win rather than face a severe double-digit sentence.
Will You Have to Register as a Sex Offender?
In most of these cases, the prosecutors are going to want the defendant to register as a sex offender. If you plead to a violation of Penal Code Section 288a, you must register as a sex offender.
The only way you would get out of it is if your defense attorney could work out a resolution that did not include a plea to this particular Penal Code Section. The prosecutors making this decision will consider all of the factors mentioned above, and obviously, what your attorney can present to the prosecutors will be considered as well.
In addition to the static 99 and psych reports under Penal Code Section 288.1, they will examine character letters from family members and people who know the defendant. They will also investigate the surrounding circumstances of the case, such as what happened, why it happened, and whether they think it's likely to happen again. The Hedding Law Firm is based in Los Angeles, CA.
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