Sending Harmful Matter of Intent to Seduce a Minor: Penal Code 288.2

Any crimes committed against minors are taken seriously by legal authorities. If you are facing charges for sending harmful matter with the intent to seduce a minor, finding an aggressive criminal defense lawyer is highly recommended. Attempting to fight these allegations without effective legal counsel could leave you with unsatisfactory results. 

An experienced criminal defense attorney would know how to best defend you against such heinous accusations. For a deeper understanding of how California outlines sending harmful matter with the intent of seducing a minor, we must first look at how it’s defined.

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How does California define sending harmful content meant to seduce a minor?

California outlines the definition of sending harmful content to a minor with the intent to seduce under Penal Code 288.2. More specifically, this law states it is a crime to:

  • Knowingly send, distribute, or exhibit any harmful matter to a minor, by any means,
    • Or if you offer or attempt to send, distribute, or exhibit any harmful matter to a minor.
    • Exhibit means to advertise, display, present, or show the said matter to a minor.
    • The matter/material can be lewd, explicit, obscene, or of a sexual nature.
    • A minor is someone under the age of 18.
    • “By any means” can mean the material was physically mailed, sent via email, text message, or any other modes of delivery.
  • With the intent to sexually arouse the minor and/or oneself, and
    • More specifically with the intent to kindle a lust and/or sexual desire in yourself and/or the minor.
  • With the intent to seduce the minor.
    • Seducing a minor means alluring them, or persuading them to make physical contact and commit an unlawful sexual act between the minor and yourself.

Associated Offenses

The following is a list of closely-related offenses that are sometimes charged in addition to PC 288.2.

Penal Code 288(a), lewd acts with a minor;

It’s illegal to touch a minor who is under the age of 14 or 15 years old, if the defendant is 10 or more years older than the minor, and they unlawfully touched the minor for the sexual arousal of themselves or the minor.

Penal Code 273(a), child endangerment;

This crime is committed when someone knowingly and willfully exposes a child to suffering pain, danger, or great bodily injury.

Penal Code 273(d), child abuse;

This crime is also referred to as corporal injury on a child and makes it a crime to impose cruel punishments and/or physical injury to a child (someone under the age of 18).

Penal Code 261.5, statutory rape;

It is a crime to have unlawful sexual intercourse with a minor, someone under the age of 18.

Penal Code 290, failure to register as a sex offender;

Once convicted of a sex crime, the accused is required to register as a sex offender. They must renew and update that registration when necessary. Failure to register as a sex offender is a crime.

Penal Code 311, child pornography;

It’s an extremely serious crime to advertise, copy/duplicate, exchange, print, possess, send, or trade child pornography OR coerce, convince, persuade and/or hire minors to participate in child pornography.

Penal Code 314, indecent exposure;

It’s a crime to willfully expose your private area to another person, either motivated by your own sexual gratification or to offend them.

The Prosecution

The prosecution has to prove specific facts of the case to successfully get a conviction for sending harmful matter to a minor with intent to seduce under PC 288.2. The facts of the case are also referred to as elements of the crime, which are:

  • The defendant knowingly offered, attempted, or actually distributed, displayed, or sent any type of harmful matter to a minor using any means to do so,
  • The defendant knew that the person receiving the material was a minor,
    • This includes if the defendant failed to reasonably find out the true age of the person receiving the harmful matter.
  • They sent, distributed, or exhibited the material with the explicit intent to aid in arousing lust, affection, or sexual desire in the minor, and
  • The defendant did all this with the specific intent to entice the minor in physical, sexual contact.
    • In other words, the defendant specifically tried to seduce the minor into engaging in a sexual act by making physical contact between themselves and the minor.

Depending on the nature and details of the case, including such things as the age of the minor and the kind of material that was being sent, the prosecutor can choose to pursue either a misdemeanor or felony penalties. This is because PC 288.2 is considered a wobbler, which means the prosecution will take into account the details of the case and the defendant’s criminal background history before their final decision.

Who Can Be Charged

To get a better idea of who can be charged with PC 288.2, take a look at the following examples.

Example 1

Todd would get drunk and take indecent pictures of himself and his genitals. He found his neighbors’ daughters attractive and he wanted to get their attention. He decided to send the pictures via text message to them. All three of the girls were in high school. He managed to find out one of the girls’ cell phone numbers and sent the harmful, indecent pictures of his private parts to her. He also messaged her to show her sisters because the pictures were for all of them.

Todd could be charged with PC 288.2 for sending harmful matter, in this case sexually explicit content, to underage minors with the intent to seduce them. He intentionally sent the images even though he was aware that all three of the girls were minors.

Example 2

Continuing with the example above, let’s say the pictures he sent were not enough to satisfy him. Todd wanted to show the girls his naked body in real life. Doing so was sexually exciting to him and he hoped his actions would lure the girls to his home. He walked into his backyard with his untied bathrobe. This exposed the whole front of his body, including his genitals. He faced the bedroom window of one of the girls and waited. Once he saw movement in the window, he began dancing, rubbing his chest, and blowing kisses toward it. The sisters were shocked to see their neighbor act in this manner and told their parents what he was doing.

Todd may have been on his private property, however, he blatantly exposed himself to the minors next door in order to entice them into unlawful sexual acts with him. Not only would he be guilty of sending harmful pictures of intent to minors under PC 288.2, but he would also face charges for indecent exposure under PC 314.

Example 3

Jeff wanted to attract the attention of his co-workers’ daughter, who was only 14 years old. When he would catch her alone, he would ask her if she would like to hang-out and watch a movie, only as friends. He promised to introduce her to his new surround sound theater system and Plasma TV. She assumed her parents were invited too, so she accepted the invite and gave him her phone number.

After a day, he began texting her intimate messages. She asked that he stop. Instead, he sent her nude pictures of young men, asking her which one she liked. She reported his behavior to her father, who accused Jeff of sending harmful matter of intent to his underage daughter.

Jeff could face charges under PC 288.2 because he knowingly sent explicit photos to a minor with the intention of enticing lust in her. Additionally, the young nude men that he was picture messaging to the minor were actually of underage boys. Jeff could also face charges under California’s child pornography laws, PC 311. His cell phone that sent the unlawful images would be confiscated. If inappropriate kiddie porn is found on his computer(s), those items would be permanently confiscated as well.

Example 4

Don persuaded Kenny, a 15-year-old boy from his church, to hang out with him and watch movies. When Kenny text messaged and asked what kind of movies they were going to watch, Don would send snapshots of the most sexually explicit scenes to him. He did this in hopes of seducing Kenny.

Once they were watching an R-rated movie at Dons’ house, he offered to give Kenny a massage. Kenny agreed and Don began to massage his back. When a sex scene popped up on the movie, Don would joke about Kenny trying that physical activity with him. Kenny, impressionable and eager to please Don, said they could try. Don asked Kenny to massage his genitals until he was fully pleasured and not to tell anyone about it.

Don is guilty of performing lewd acts with a minor, PC 288(a) and sending harmful matter with intent to seduce a minor, PC 288.2. He may have only sent images of movie scenes to Kenny, but those specific scenes alluded to his true motives, seducing a minor. In this case, his actions did result in successfully convincing the minor to commit unlawful sexual acts. Don may have thought Kennys’ consent was enough, but Kenny is not legally able to consent due to being a minor. Also, Don knew he was breaking the law, which is why he asked the child not to tell anyone about their activities.

The Legal Defense

Any crime involving children is taken seriously by the police, the prosecutor, and the judges. Unfortunately, this means that innocent people may get caught up in wrongful charges due to rushed investigations, presumed guilt, or flat out false allegations.

Was the matter actually harmful?

For someone to be guilty of PC 288.2, the material being sent must fall under the definitions of “harmful matter.” There are exceptions to this in cases where the content being sent, shown, or distributed actually has artistic or educational purposes.

For instance, paintings, theatre, cinema, and other forms of entertainment have sex or sexually explicit scenes. These depictions, however, are not intended to harm audiences into seduction. The same could be said for textbooks, educational or health TV, or other learning materials. Even if the content depicts nudity, sexual organs, or allude to such things, the intention is not to harm minors.

Example: Margie is a health education professor and has to teach a lesson on the different sexual organs of males and females. She passes out learning material that depicts the male and female genitalia. One of her students is 17 years old and takes the work home to study. Their parents find the diagram and report the professor for distributing harmful matter to a minor with unlawful intent. Margie would not be guilty of PC 288.2 because the content she was passing to her students was purely for educational purposes.

False Accusations and Wrongful Arrest

It’s not unheard of for innocent people to get falsely accused which can lead to a wrongful arrest. Suspected criminal acts involving children are taken seriously by law enforcement and the prosecutor, to the extent that rushed charges are attempted without a full investigation. There are cases where false allegations are made due to parents acting overly cautious, or if the alleged victim is acting out of anger or retaliation.

Example: Sonya disapproved of her 11th-grade son, Arnie dating a 12th-grade girl, Becca. They were both 17 years old. Like many teenagers, they were sexually active and would send risky photos of themselves to each other. As soon as Becca turned 18 years old, Sonya reported her to the authorities, accusing her of sending harmful matter with intent to seduce her son, who was still a minor. The photos Becca was accused of sending were images of her fully clothed, blowing kisses and posing for her boyfriend, Arnie. Their romantic relationship to this point has already been well established and Sonya was fully aware of it.

Becca would not be guilty of PC 288.2 because the images she sent did not rise to the level of what is considered harmful material. In this case, Sonya was a parent who overreacted to her sons’ relationship and was unnecessarily cautious by falsely accusing Becca of this crime.

Lack of Knowledge or Intent

Two of the main elements of PC 288.2 is knowledge and intent. Did you knowingly intend to send the harmful matter to a minor? If the defendant did not knowingly intend to show illicit material to a child, then they also lacked the intent to seduce them. Even if the harmful matter was sent, if the defendant had no intention of seducing a minor, then they would not meet all the criteria to be convicted of this crime.

Example: Ceasar sent images of his genitals along with seductive text messages to his girlfriend, Rosa. It turned out she had gotten a new cellphone and gave her old one to her 13-year-old son, Ramone. He showed his friend the pictures and text messages instead of telling his mom. When his friend saw them, they told their parents right away. Ceasar was accused of sending harmful matter of intent to seduce a minor.

Ceasar did not know Rosa had gotten a new phone, nor was he aware that Ramone got the old one. In this case, the images were not meant for a child, he thought he was talking to his girlfriend, Rosa. Ceasar would not be guilty of PC 288.2 because he did not knowingly send harmful matter to a minor and lacked the overall intent to do so.

Penalties for Penal Code 288.2

If the prosecution gets a conviction for sending harmful matter with intent to seduce a minor, PC 288.2, you face:

Misdemeanor;

Summary (informal) probation,

Up to six months in county jail, and/or

Fines of up to one thousand dollars.

Felony;

Formal (felony) probation,

16 months, 2 or 3 years in state prison,

Fines of up to ten thousand dollars, and

Lifetime registration requirement to register as a tier three sex offender.

Enhanced Consequences

If the defendant used their computer to send the harmful matter and they used the internet to do so, their computer would be legally confiscated. Additionally, if convicted as a felony and you fail to register as a sex offender, you will face enhanced penalties under Penal Code 290.

Penalties for Similar Offenses

Penal Code 288(a), lewd acts with a minor;

Felony;

Formal (felony) probation,

3, 6, or 8 years in state prison, and

As much as ten thousand dollars in fines.

Penal Code 273(a), child endangerment;

Misdemeanor;

Up to six months in county jail, and/or

Up to one thousand dollars in fines.

Felony:

2, 4, or 6 years in state prison, and/or

Up to ten thousand dollars in fines.

Penal Code 273(d), child abuse;

Misdemeanor;

Summary (informal) probation,

Up to one year in county jail, and/or

As much as six thousand dollars in fines.

Felony;

Formal (felony) probation,

2, 4, or 6 years in county jail, and/or

Up to six thousand dollars in fines.

Penal Code 261.5, statutory rape;

Misdemeanor;

Informal probation,

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

Formal probation, with

Up to 1 year in county jail, OR

16 months, 2, 3, or 4 years in county jail, and

As much as ten thousand dollars in fines. 

Penal Code 290, failure to register as a sex offender;

Misdemeanor;

Summary probation,

Up to one year in county jail, and/or

Up to one thousand dollars in fines.

Felony;

Formal probation,

16 months, 2, or 3 years in state prison, and/or

Fines of up to ten thousand dollars.

Penal Code 311, child pornography;

Misdemeanor;

Up to one year in county jail, and/or

Minimum fines of one thousand dollars or

Up to two thousand five hundred dollars in fines, and

Registration as a sex offender.

Felony;

A state prison sentence of up to 3 years or longer,

As much as one hundred thousand dollars in fines, and

Lifetime registration as a sex offender.

Penal Code 314, indecent exposure;

Misdemeanor;

Up to six months in county jail,

Fines of up to one thousand dollars,

Registration as a sex offender for up to ten years.

Felony;

16 months, 2, or 3 years in state prison,

Fines of up to ten thousand dollars, and

Registration as a sex offender for up to ten years.

Call Us For Help

Are you or someone you love facing charges for PC 288.2, sending harmful matter of intent to seduce a minor? If you are located in San Diego, Orange County, or Los Angeles and need legal advice, don’t hesitate to contact the Law Offices of Anna R. Yum.

As a former prosecutor and an award-winning criminal defense attorney, Attorney Yum understands how hard you have to fight against sex crimes of any nature. To schedule a free, no-obligation consultation, call us at 619-233-4433 or use our online contact form.

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