Arrested for Lewd or Lascivious Acts with a Child Under 14 (Penal Code § 288(a)) in California?

If you’ve been arrested for lewd or lascivious acts with a child under 14 under California Penal Code § 288(a), you’re facing one of the most serious criminal charges in the state. This law is designed to protect young children from sexual abuse, and the penalties are appropriately severe. Before making any statements or decisions, it’s crucial to understand exactly what these charges mean, the potential penalties you’re facing, and the defenses that may be available to you.

What is Penal Code § 288(a)?

California Penal Code § 288(a) states:

“Except as provided in subdivision (i), 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.”

Key Elements of § 288(a) Charges

To secure a conviction under § 288(a), the prosecution must prove several elements beyond a reasonable doubt:

1. You willfully committed a lewd or lascivious act upon or with the body of a child.
2. The child was under 14 years old at the time of the act.
3. You committed the act with the intent of arousing, appealing to, or gratifying your own lust, passions, or sexual desires, or those of the child.

It’s important to note that the law doesn’t require skin-to-skin contact or that the touching be on a sexual organ. Any touching of a child under 14 with sexual intent can potentially violate this law.

What Constitutes a “Lewd or Lascivious Act”?

A “lewd or lascivious act” under this statute can include:

• Touching a child’s body, whether clothed or unclothed
• Having a child touch their own body or the perpetrator’s body
• Any act that is objectively “sexual” in nature

The key is that the act must be committed with the intent to arouse or gratify sexual desires.

Penalties for § 288(a) Violations

The penalties for violating Penal Code § 288(a) are severe. If convicted, you face:

• Imprisonment in state prison for 3, 6, or 8 years
• A fine of up to $10,000
• Mandatory registration as a sex offender for life

It’s important to note that this offense is always charged as a felony and is considered a “strike” under California’s Three Strikes law.

Additional Consequences

Beyond the immediate legal penalties, a conviction under § 288(a) can have far-reaching consequences:

1. Sex Offender Registration: You’ll be required to register as a sex offender for life, which can severely restrict where you can live and work.
2. Immigration Consequences: For non-citizens, a conviction could lead to deportation or inadmissibility.
3. Professional Licenses: Many professional licensing boards will revoke licenses upon conviction of this offense.
4. Employment: A conviction will make it extremely difficult, if not impossible, to find employment, especially in fields involving work with children.
5. Housing: Many landlords refuse to rent to registered sex offenders.
6. Child Custody: A conviction will likely result in loss of custody or visitation rights with your own children.
7. Reputation: The stigma associated with these charges can be devastating and long-lasting, affecting all aspects of your personal and professional life.

Legal Defenses for § 288(a) Charges

If you’re facing charges under Penal Code § 288(a), several legal defenses may be available:

1. False Accusation

Unfortunately, false accusations do occur, especially in cases involving children. These can arise from misunderstandings, coaching by adults, or even malicious intent. A skilled defense attorney can investigate the circumstances and potentially uncover evidence of a false accusation.

2. Lack of Intent

If the touching was innocent and not motivated by sexual intent, it does not violate this law. For example, a parent bathing a young child or a doctor performing a legitimate medical examination would not be guilty under this statute.

3. Mistaken Age

If you reasonably and genuinely believed the child was 14 or older, this could be a defense. However, you must be able to show that you had a good faith belief based on reasonable evidence.

4. Insufficient Evidence

The prosecution must prove every element of the crime beyond a reasonable doubt. If there’s not enough evidence to meet this high standard, you should not be convicted.

5. Constitutional Violations

If your constitutional rights were violated during the investigation or arrest, certain evidence might be suppressed.

6. Coerced Confession

If you were pressured or coerced into making a false confession, your attorney may be able to have this evidence suppressed.

The Legal Process for § 288(a) Charges

Understanding the legal process can help you prepare for what’s ahead:

1. Investigation: Law enforcement gathers evidence, often including interviews with the alleged victim and witnesses.
2. Arrest: If there’s probable cause, an arrest is made.
3. Booking: You’re photographed, fingerprinted, and your personal information is recorded.
4. Arraignment: You appear in court to hear the charges and enter a plea.
5. Bail Hearing: The judge decides whether to grant bail and sets the amount.
6. Preliminary Hearing: The prosecution must show there’s enough evidence to proceed to trial.
7. Pretrial Motions: Your attorney may file motions to suppress evidence or dismiss the case.
8. Plea Bargaining: Sometimes, a plea deal may be negotiated.
9. Trial: If the case goes to trial, both sides present evidence and arguments to a jury.
10. Verdict: The jury decides whether you’re guilty or not guilty.
11. Sentencing: If found guilty, the judge determines the sentence.

What Most People Don’t Know About § 288(a) Charges

1. No Physical Gratification Required: You can be convicted even if no physical sexual gratification occurred.
2. Child’s Consent is Irrelevant: A child under 14 cannot legally consent to sexual acts.
3. No Statute of Limitations: As of 2020, there is no statute of limitations for this offense in California.
4. Stealth Touching: Even touching a sleeping child can be a violation if done with sexual intent.
5. Mandatory Reporting: Many professionals are required by law to report suspected violations, which can trigger investigations.
6. Impact on Other Cases: A conviction under this section can be used as evidence in family court proceedings.
7. No Time Off for Good Behavior: Those convicted under this statute must serve at least 85% of their sentence before being eligible for parole.

Frequently Asked Questions

Q: Can I be charged if the alleged acts occurred many years ago?

A: Possibly. As of 2020, there is no statute of limitations for this offense in California.

Q: What if the alleged victim recants?

A: While helpful, a recantation doesn’t automatically end the case. Prosecutors may still proceed if they believe they have enough evidence.

Q: Can I be charged if I didn’t actually touch the child?

A: Yes. Having a child touch themselves or you can also be a violation of this law.

Q: Will I have to register as a sex offender if convicted?

A: Yes. Conviction under § 288(a) requires lifetime registration as a sex offender.

Q: Can these charges be expunged from my record?

A: Generally, no. Convictions for lewd acts with a child are not eligible for expungement in California.

Why You Need an Experienced Defense Attorney

Given the complexity of § 288(a) cases and the severity of potential penalties, it’s crucial to have experienced legal representation. An experienced attorney can:

• Protect your constitutional rights throughout the process
• Conduct an independent investigation
• Challenge the prosecution’s evidence
• Negotiate with prosecutors for reduced charges or penalties
• Represent you effectively in court
• Help minimize the long-term consequences of these charges

When choosing an attorney, look for someone with specific experience defending against § 288(a) charges, a track record of success in sex crime cases, and someone you feel comfortable discussing sensitive details with.

How The Nieves Law Firm Can Help

At The Nieves Law Firm, we understand the gravity of § 288(a) charges and the impact they can have on your life. Our experienced criminal defense attorneys are committed to providing aggressive and strategic defense for our clients.

We offer:

• Free initial consultations
• On staff private investigator
• Emergency phone line
• Multilingual services
• A team approach to your defense
• Extensive experience in sex crime cases

We’ll investigate your case, challenge the evidence against you, and fight for the best possible outcome. Our goal is to protect your rights, your freedom, and your future.

Don’t face these serious charges alone. Contact The Nieves Law Firm today for a confidential consultation. Remember, an arrest is not a conviction, and there are defenses available. Let us help you navigate this challenging time and work towards the best possible resolution for your case.