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Lewd or Lascivious Acts with a Minor (Child Molestation)

The media attention and public outrage over child molestation incidents in California is intense and constant, and while there is legitimate cause for this concern, unfortunately, there is often little thought of the possibility the accused could be innocent.

In California, child molestation charges, legally termed lewd or lascivious acts with a minor, carry with them severe, lifelong consequences, including lifetime registration as a sex offender and an undying social stigma. When you have been charged with a crime of this magnitude, or believe you are about to be charged, there is no time to waste in finding a skilled criminal defense attorney. The Law Offices of Anna R. Yum are here to guide you through this challenging time.

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However, you should also familiarize yourself with the basics of California child molestation law so you will better understand the process. Just below, we give you a start on doing exactly that:

How Is Child Molestation Defined in California?

California Penal Code Section 288 defines lewd or lascivious acts with a minor as applying specifically to children under the age of 14, though the same elements of the crime apply to children of all ages (but punishments vary based on age, as outlined below).

The crime is defined as "touching a child anywhere on his or her body for the purpose of sexual pleasure."

This touching can be directly on the sexual organs, but it need not be. Touching through the clothes or on any part of the body with sexual intent meets the criteria of the crime.

Possible Punishments for Acts of Child Molestation

Sentencing is harsh in all convictions for child molestation, but the sentencing elements vary based on the child's age and other factors as follows:

Molestation of a child under 14 years old is considered a violent felony and can carry eight years in state prison plus a strike on your record under California's "Three Strikes Law." Under certain circumstances and with the right legal help, however, one year in county jail with probation is possible instead.

Sentencing enhancements are triggered as follows:

  • Five to 10 years in state prison if force was used to subject the child to the lewd/lascivious act(s).
  • Up to 16 years in prison if three or more incidents occurred across a three-month or greater time span.
  • 25 years to life in prison if a prior related conviction qualifies a defendant as a "habitual sexual offender."

When the child was 14 to 15 years old and the accused was 10 or more years older than the child, either felony or misdemeanor charges can be filed, depending on the details of the case.

If charged as a misdemeanor, punishment will include one year in county jail with probation. If charged as a felony, those convicted could get 16 months to three years in prison.

?For minors ages 16 and 17, cases are handled under Penal Code Section 261.5 as statutory rape, if intercourse took place or under Penal Code Section 243.4(a) as sexual battery when lewd/lascivious acts took place but without sexual intercourse. It is not necessary that force was used for it to qualify as statutory rape since minors are not considered capable of giving legitimate consent.

All forms of child molestation require lifetime registration as a sex offender under Penal Code Section 290, and failure to register results in a separate misdemeanor charge. Also note that all treatment the minor requires as a result of the molestation is chargeable to the defendant if convicted, and there is an extra five-year prison term whenever the minor suffered "great bodily injury." Each act of molestation can be charged and sentenced as a distinct offense.

What Must the Prosecution Prove?

To prove a defendant is guilty of committing lewd or lascivious acts with a minor, the prosecutor must demonstrate beyond doubt two elements of the crime:

  1. The defendant willfully touched the child or caused the child to touch him/her or another individual.
  2. The touching in question was done for the purpose of sexual arousal/gratification, whether of the defendant, of the minor, or of another person.

"Willfully" simply indicates an intentional, as opposed to an accidental, act of touching. It does not address an intent to harm or violate the law, but simply an intent to touch.

"Touch" includes any part of the body, whether bare skin or through the clothes. It is not limited to what are typical considered sexual organs but concerns touching in "a sexual way."

"Intent to arouse/gratify" does not mean that actually arousing/gratifying must be proved. Only the purpose of the touching is in question here.

Common Defense Strategies

Unfortunately, false accusations of child molestation are not an uncommon occurrence in California. Without a good lawyer fighting in their interests, many innocent people can end up imprisoned for long periods of time and with a permanently damaged reputation.

At the Law Offices of Anna R. Yum, we have deep experience in successfully defending our clients against charges of child molestation and sex crime allegations in general. We know how to challenge the prosecution's evidence, obtain witnesses/evidence in your favor, and build a strong defense.

Before we look at the most effective defenses we use to win the best possible outcome to each case, let us note two defenses that cannot be used:

  1. A mistaken assessment of the child's age. This can be used as a defense against statutory rape but never against lewd and lascivious acts with a minor.
  2. The minor gave consent to the act in question. This is not a defense because the consent of minors has no legal standing in California as regards sexual acts.

Defenses that can be used against charges of child molestation include the following:

  • The accused is not the true perpetrator. It is a case of mistaken identity or "perpetrator substitution" as it is known in the legal world.
  • Another person manipulated or "coached" the child into making the accusation.
  • Whatever physical contact occurred between the child/defendant was purely accidental. Thus, it was not "willful" and not child molestation.
  • Though the touching was willful, it was not done with any sexually related intent. Since intent can be difficult to prove, this is a very commonly used defense, especially when the act of touching was not "overtly sexual."
  • The child is not telling the truth about what happened, if anything happened at all. To demonstrate the likelihood the child may be lying, defense lawyers often subpoena school, medical, counseling, social media site, and email records. They may also interview the child's family/friends and run a background check to see if the child has a history of making up these kinds of accusations.

Why Would a Child Lie? And How Would a Child Even Know About These Things?

The twin questions "Why would a child lie about a thing like this?" and "How would a child even know about such sexual acts? are often asked when a defense attorney challenges the prosecution's case.

While this reaction is understandable, it also reveals a kind of "automatic" bias against a person accused of child molestation and in favor of the child making the accusation.

The fact is, however, that some children do make ups these kinds of accusations against adults. Some of the reasons they typically do so include:

  • An attempt to force a parent, stepparent, or other adult they dislike to leave the home or even an attempt at getting revenge on some adult whom they believe has hurt/mistreated them in the past.
  • Seeking attention and/or sympathy from parents or some other adult whom they feel has been neglecting them.
  • Trying to scare parents/guardians into never again leaving them alone with a babysitter.

As to the question of where children would even gain the knowledge to describe sexual acts, it is no secret that today's youth are exposed to sexual content and knowledge at far younger ages than in past generations. Television, the movie theater, porn magazines, certain social media sites, the Internet in general, and friends at school or who live near their home are all possible sources of the information.

Contact Us Today for Help

At the Law Offices of Anna R. Yum, we have handled a plethora of sex crimes cases in San Diego and Southern California over the course of many years, and we are committed to upholding the rights of each and every one of our clients.

For a free consultation with Attorney Anna R. Yum, call us 24/7 at 619-233-4433 or fill out our online contact form.

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