Lewd and Lascivious Acts by a Caretaker on Dependent Persons
California Penal Code 288(b)(2)
California Penal Code 288(b)(2) PC defines and penalizes a crime when a caretaker commits a lewd act on a dependent person (or, a physically impaired person aged 65 or older), and to do so by the use of force or fear of bodily injury.
It should be noted that a person convicted of this offense is also required to register as a sex offender for the rest of his life.
Penal Code 288(b)(c) reads as follows:
“A person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.”
Thus, for a the prosecution of violation of 288(2)(b) to prosper the following elements must be proven by the prosecutor:
i. Defendant was a caretaker of a dependent person, and
ii. Willfully committed a lewd or lascivious act on that person, and
iii. Had intent to arouse or gratify a sexual desire, and
iv. Used force, violence, duress, or fear of unlawful bodily injury
A “caretaker” is described as an owner, operator, employee, or independent contractor of a facility providing care for dependent people or someone 65 or older.
The “facilities” include an assisted living home, nursing home, or someone providing care in a personal home.
A “dependent person” is described as anyone who has physical or mental impairment that prohibits their ability to perform normal activities or to protect their rights.
Under Penal Code 287, a lewd act is either:
touching a dependent person for sexual purposes, or
causing that person to touch him/herself or someone else for a sexual purpose.
Penalties
The crime is a felony under California law and is punishable by imprisonment in the California state prison for five years, eight years, or 10 years.
Aside from serving prison sentence, a person convicted of this offense is also subjected to lifetime registration as a sex offender.
Legal Defenses
As already mentioned, it is incumbent upon the prosecutor to prove the elements of the crime beyond reasonable doubt in order for the case to prosper. Thus, legal defenses involving such crime will hinge on reasonable doubt that may exists. This reasonable doubt may be based on fact that accused is not a caretaker, or the victim is not a dependent person as contemplated by the law. In addition to that, it could be possible that the defendant was only falsely accused out of jealousy, revenge, or anger.
Even assuming lewd and lascivious act has been proven i.e. an inappropriate touching, took place between the caregiver and his or her dependent, the additional element of force, fear, duress, menace, or other unlawful means must still be established.
In this specific offense, the aggravating factors must be proven with the same quantum of evidence i.e. beyond reasonable doubt, as crime itself. If this aggravating factor cannot be proven, the defendant is still guilty of a lewd act, but the penalties associated with this offense, which would fall under Penal Code Section 288(c)(2) rather than Penal Code Section 288(b)(2), are much less serious.
Considering the severity of the offense involving lewd acts by a caretaker under Penal Code 288(b)(2), defendant must ensure that he is properly assisted by his attorney during trial; otherwise he may face imprisonment in state prison and lifetime registration as sex offender.
Related offenses
The offense described above is only one of the lewd and lascivious acts punishable under the law. If the facts of being a caretaker or dependent person are not proven, the acts complained of may still be punished as a crime under the following related provisions. These are:
i. lewd acts on a minor child with no force – PC 288;
ii. lewd act on a minor child by use of force or fear – PC 288b1, and
iii. lewd act with a minor child, bodily harm inflicted – PC 288i.
Conviction for any of the aforementioned offenses also carries with it the condition of having to register as sex offender.
1. Penal Code 288. lewd acts on a minor child with no force is punishable when person has 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.
2. Penal Code 288b1. lewd act on a minor child by use of force or fear is punishable when a person haswillfully and lewdly commits any lewd or lascivious act by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
3. Penal Code 288i. lewd act with a minor child, bodily harm inflicted. This California statute makes it a crime for a person to commit a lewd act on a minor child under the age of 14, and to inflict bodily harm on the victim in doing so. A conviction is a felony punishable by life in prison with the possibility of parole.
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