Child Molestation/Sexual Assault

Lewd Act With a Child/Child Molestation (Penal Code §288)

Child Molestation is a serious charge that not only carries grave legal consequences but has severe social consequences as well. Sadly, this accusation can ruin an innocent person's life. A conviction of almost any type of child molestation will result in a branding as a sex offender for life, social ostracism, and often destroys relationships with family and friends. To avert the consequences, you should consult an Orange County child molestation defense lawyer.

False accusations of child molestation DO happen, but the truth is, the prosecutor and society are inclined to believe the accuser. If the accusation becomes a conviction, the consequences last a lifetime. It is imperative that anyone accused of molesting a child consult with an attorney experienced in defending this type of crime.

You may be surprised to learn that a violation of this section does not require that the accused committed any over sexual act. A charge under Penal Code section 288 makes it a crime to touch a child under the age of 14 with a sexual intent, that is, with the intent of sexually arousing the child, the person committing the act, or even another person. Actual arousal need not to have occurred. The offense is also committed when the offender causes the child to touch him- or herself, the offender, or another person. An example might be telling a child to touch another child in a sexually arousing manner.

Furthermore, every discreet act of touching with sexual intent can be charged as a separate count. For example, if the child is fondled in one area of his or her body and then kissed, those are two separate acts of lewd conduct that can be charged as two separate counts.

The touching does not have to be on the child's bare skin; touching through clothing, on any part of the child's body if the intent is sexual, is a crime under this section. Furthermore, there can be no defense of consent if the child is under 14 years of age. Under the law, a child under 14 cannot consent. Nor is there a defense of mistaken age of the child, even if the child appeared to be and/or claimed to be much older.

As an example: a person could be in violation of Penal Code section 288 for simply massaging the shoulders of a fully clothed 13 year old child. If the massage has a sexual intent (i.e., to sexually arouse the child, the offender, or another person), the offense has occurred.

Unfortunately, sometimes innocent acts of affection are wrongly interpreted. Or an adult, who is motivated to retaliate or otherwise harm the accused, will use a child to create the accusations. Regrettably this sometimes happens during an acrimonious divorce or other relationship failure.

The astute reader might wonder how the prosecutor proves "sexual intent" when the act is ambiguous. Obviously, an overt sexual act is evidence of the intent but what about the example of a massage? This is a question of context that is left to the trier of fact (judge or jury). The circumstances surrounding the alleged act will inform the intent. In the massage example, if the child complained of shoulder pain and the circumstances supported the conclusion that the alleged offender was only trying to relieve the pain and nothing more, the requisite intent is not present. On the other hand, the intent may be shown if, for example, the alleged offender initiated the massage and during the massage made statements that had sexual overtones.

When these acts are committed on a child of 14 or 15 years of age and the person committing the act is at least ten years older than the child, the crime is punished under Penal Code section 288(c)(1). While this crime is punished less severely than if the child is under 14 years old, it will still result in a "branding" as a sex offender with a sex offender registration requirement.

When these acts are committed against a child 16 or 17 years old, it will be prosecuted as statutory rape or sexual battery, rather than child molestation. Both of these charges will also expose the accused to the sex offender registration requirement.

I am an experienced child molestation attorney in Orange County with many successes in defending these types of allegations. Because the social consequences of a conviction under this particular statute are very serious, a person accused of child molestation must immediately enlist the help of an attorney who will fight hard for the best possible outcome. I will challenge every element of the case, from the scientific evidence to witness statements and everything in between. Contact me at any time to set up a confidential consultation with an Orange County child molestation attorney without charge. I will work with you and your family to provide a fee structure that best suits your circumstances.

Sentencing

Perhaps the most severe consequence of a conviction under this statute is the sex offender registration requirement. Any conviction under Penal Code section 288 will result in a mandatory requirement that the offender register pursuant to Penal Code section 290. Among other impediments, this registration requirement will result in social ostracism and difficulty finding a place to live and work.

The registration requirement is a lifetime requirement, but California recently passed a law that will create tiered registration requirements (10 years, 20 years, and life) which is scheduled to go into effect in 2021. Under the new law, some section 288 convictions will qualify for less than a lifetime registration requirement. Those who were convicted prior to 2021 will be permitted to petition for relief appropriate to the conviction under the new law.

If convicted of lewd acts upon a child under the age of 14, the offense is a felony with a sentence of three, six, or eight years imprisonment in state prison. If force was used upon the child, the sentence is five, eight, or ten years imprisonment. When it is a case of molesting a child with whom the accused lives or has frequent contact and the molestation occurs over at least three months and includes at least three separate acts, the punishment proscribe under Penal Code section 288.5 is imprisonment in the state prison for a term of 6, 12, or 16 years.

When the act or acts are committed against a child age 14 or 15 and the accused is at least 10 years older than the child, the punishment is imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. A child molestation lawyer in Orange County can help you try to stay out of jail if you have been charged.

A conviction of child molestation has a lifetime impact on the offender. That is why it is imperative to hire an attorney, such as Orange County criminal defense attorney William Weinberg, who has solid experience defending child molestation charges. If there is any mitigating evidence, Attorney Weinberg knows where to find it and how to present that evidence in a way that may result in a dismissal of the charge or a reduction in the degree of the seriousness of the charge. With over 25 years defending those charged with child molestation in Orange County, William Weinberg is a knowledgeable and skilled advocate whose goal is to obtain the best outcome for his clients.

If you have questions about child molestation charges or would like more information, feel free to contact William Weinberg for a free consultation. He may be reached at his Irvine office at 949-474-8008 or by email at bill@williamweinberg.com.

California Criminal Defense Lawyer Blog - Sex Crimes