Lewd Act with a Minor Child, Bodily Harm Inflicted

California Penal Code 288(i) PC

California Penal Code 288i defines and penalizes the act of committing a lewd or lascivious act on a minor child under the age of 14, and inflict bodily harm on the victim in the course of committing the same.

A conviction under this penal code is a felony punishable by life imprisonment in State Prison with the possibility of parole. In addition to that, a person convicted of this offense will also be subjected to mandatory lifetime registration as a California sex offender.

A "lewd act" is broadly defined as either touching a child for sexual purposes or Causing a child to touch him/herself or someone else for a sexual purpose.[1]

Due to the seriousness of the offense charged under this Penal Code, it is important that an experienced attorney assist you in raising legal defenses during your trial. Some of the more common legal defenses raised in this type of case are: the alleged victim is lying, the touching was accidental, or the defendant was arrested after a coerced confession. Defenses may vary on a case-to-case basis. Thus, it is important that you should have a thorough discussion with your attorney on this matter.

A. When is Penal Code 288i Committed?

In order for the charge of Penal Code 288i PC to prosper, the following elements of the crime must be proven by the prosecution beyond a reasonable doubt:

1. commit a lewd act on a minor child under 14 years of age, and
2. inflict bodily harm on the victim in doing so.[2]s

In order to understand the elements referred to above, let's take a look at the legal definition of each element.

"Lewd act with a minor"

California Penal Code 288(a) defines a "lewd act with a minor" as any "lewd or lascivious act" made willfully, upon the body of a child under 14, and made with the intent of arousing or gratifying the lust of either the perpetrator, the child, and/or another person.

"lewd act"

A "lewd act" includes touching a child for sexual purposes or causing a child to touch him/herself or someone else for a sexual purpose.

It must be emphasized that being found guilty of the offense as charged under PC 288(i), the offender must have done so willfully or on purpose with the intent of sexual arousal.

"bodily harm"

According to Penal Code 288(i)(3), "bodily harm" means any substantial injury resulting from the use of force that is more than the force necessary to commit the offense.⁴ Whether or not a victim suffers from "bodily harm" will be determined by the facts of a particular case.

B. Legal Defenses

In order to challenge the accusations against you, you must raise legal defenses which have been found to be acceptable in cases similar to this. The enumerated defenses below are not exhaustive as it is largely dependent on the facts of each case. The following legal defenses are found to be more common and may work to reduce or even dismiss a charge. These common defenses include:

1. the allegations are fabricated and that the victim is lying,
2. the touching was accidental and/or
3. a coerced confession.

i. The allegations are fabricated and that the victim is lying

Prosecution for these types of cases relies heavily on the alleged victim's testimony. Therefore, the credibility of the accused as to his/her testimony should be scrutinized. One of the stronger defenses raised is to show that the victim was lying or exaggerated the truth when he/she reported the offense.

ii. Touching was merely accidental and not for the purpose of sexual arousal

As already discussed above, it is important to prove that the elements that touching was done willfully for the purpose of sexual arousal in order to be found guilty of a violation of Penal Code 288(i). Also, note that the purpose for which the touching was done should be proven beyond a reasonable doubt. Thus, it is equally acceptable that the accused may raise the defense that the touching occurred accidentally and was not done for the purpose of sexual arousal. In such cases, it may be important to look into the circumstances surrounding the allegations in the complaint. Time and place where the alleged act complained of were perpetrated should also be considered and whether given the circumstances, it was plausible to commit such acts.

iii. Coerced confession

This defense is made applicable in cases when the defendant was charged with violating Penal Code 288i after he had allegedly confessed to the commission thereof. In most cases, confessions are obtained by police officers by employing excessive measures. As such, a defendant may ask the court to have his confession be excluded from evidence if it is sufficiently proven that he was merely coerced and was unduly pressured to confess to a crime he did not commit.

C. Related offenses

The acts made punishable under Penal Code 288i are similar to that punished under related laws, namely:

1. lewd acts on a minor child with no force – PC 288(a);
2. lewd acts on a minor child and force used – PC 288(b)(1); and,
3. lewd act with force by caretaker of a dependent person – PC 288(b)(2).

a. Lewd acts on a minor child with no force – PC 288(a)

Anyone who knowingly commits lewd acts with a minor under 14 years, with the purpose of sexually arousing himself, can be found guilty of violating Penal Code 288.

In order for the crime of lewd and lascivious acts with a child under 14 to prosper, the state's prosecutors have to prove the following elements:

1. That you have intentionally touched a child's body or body part or persuaded a child to do so, even if they consented.
2. The touching was done for the purpose of gratifying or arousing the sexual desires of yourself or the child in question.

The offense usually involves accusations that the child was touched or fondled on a sexual organ or an overt act of child molestation.

Nonetheless, you can still be charged with lewd acts even if the touching was not on a sexual organ, the touching was done over the child's clothes (rather than on the bare skin), or the child was the one doing the touching (if at the defendant's urging).

A violation of PC 288(a) is charged as a felony. The crime is punishable by imprisonment in the state prison for 3, 6, or 8 years. Aside from state imprisonment, a person found guilty under this code section must also register as a sex offender for 20 years.

The distinction between Penal Code 288 and 288i is that the latter includes inflicting bodily harm to the victim while committing lewd acts. As such, a more serious penalty is imposed. Moreover, Registration as a sex offender also differs in the sense that Penal Code 288 requires a minimum of 20 years of registration, while Penal Code 288i will subject you to lifetime registration as a sex offender.

b. Lewd acts on a minor child and force used – PC 288(b)(1)

Penal Code 288(b)(1) is punishable when lewd acts are committed under PC 288(a) and the course thereof, defendant uses force or violence.[3]

A violation of PC 288(b)(1) is also charged as a felony and is punishable by imprisonment in state prison for 5, 8, or 10 years. Like all the other offenses under Penal Code 288, a person found guilty under this code section must also register as a sex offender. But for violation of this specific subdivision, registration is mandatory for the rest of his life.

c. Lewd act with force by caretaker of a dependent person – PC 288(b)(2)

Penal Code 288(b)(1) is punishable when lewd acts are committed under PC 288(a) and he is the caretaker of a dependent person (e.g., a physically impaired person aged 65 or older).

A violation of PC 288(b)(2) is also charged as a felony. The crime is punishable by imprisonment in the state prison for 5, 8, or 10 years. Like all the other offenses under Penal Code 288, a person found guilty under this code section must also register as a sex offender. But for violation of this specific subdivision, registration is mandatory for the rest of his life.

If you have been arrested or accused of a crime in California, speak with our criminal defense lawyers as soon as possible. Request your free consultation by calling us at (626) 827-7222.