Child molestation is covered in PC 288, which says that anyone who commits a “lewd or lascivious act” on a child under the age of 14 is guilty of a felony. The statute also goes on to list a host of variations of that same offense, variations which include the age of the victim (and sometimes the age of the alleged perpetrator); whether force was used; whether the act was committed by a “caretaker” against an elder or dependent person; whether the alleged victim suffered bodily harm; and others.
Note that there are more serious sexual offenses that may be committed involving a minor – among them acts involving sexual penetration – which generally fall under the heading of sexual assault, rape and/or sexual battery.
An essential element of child molestation under PC 288 is that there be some form of “touching.” This distinguishes molestation from the crime of indecent exposure, which is generally a less serious offense. It is no defense to a molestation charge that the touching was not on the skin; lewd and lascivious conduct can include under this section touching that involves clothed or partially clothed body parts. It can also be accomplished through the touching (with or without clothing) on areas other than the genitals.
The statute also requires that the act involve a child under the age of 14 (although there are provisions (see below) that make it a crime, under some circumstances, to commit the same act with a child 14 or 15 years old). Finally, and perhaps most importantly, the law requires that the act in question – the touching – be performed with the intent of gratifying or arousing the passions or sexual desires of the defendant or the child.
Clearly, casually brushing up against a child, with no ulterior motive, is not covered under PC 288, nor is it illegal in and of itself. The essential element here is that the act is prompted by sexual desire or arousal. Evidence of that intent could involve issues such as the relationship, if any, between the child and the other person, the location of the alleged act, and the specific nature of the touching.
Child molestation, where the child is under the age of 14, is a felony, punishable by 3, 6, or 8 years in prison. If, however, the child is 14 or 15 years old, and the defendant is at least 10 years older that the child, the offense is a wobbler, and could be charged as a misdemeanor or a felony. With children older than 15, the charge, if any, would likely be made under PC 243(a), as sexual assault/battery.
Finally, where the lewd or lascivious act is performed by force, fear or duress, the offense is a felony with a penalty, if you are convicted, of 5, 8 or 10 years in prison.
As is the case with many sex crimes, lengthy potential sentences are not the only possible risks of a guilty verdict or plea. In the case of PC 288 child molestation, a conviction will usually require registration as a sex offender under Megan’s Law. In certain limited cases, you may be able to request that you be excluded from the registration requirement.
In defending against a child molestation charge, it is important to remember that notwithstanding the seriousness of the charge, there are possible defenses. They include the following:
- Children, particularly young children, may be prone to mistaken identification, including situations where they are prompted beforehand by an adult. It may be possible to demonstrate that the child is mistaken, by way of alibi or otherwise.
- Non-Sexual Touching. This may occur either through an accidental touching, and/or a touching where there was no intent to arouse.
- Where the child is not under 14, or where there is not at least 10 years difference in age between the adult and a 14 or 15 year old child, the requirements of the statute cannot be met.
Other defenses, including constitutional violations such as illegal search and seizure, likewise apply in child molestation cases.
Child molestation is a serious charge, usually a felony. It also carries with it the likelihood of sex offender registration if you are convicted. The potential damage to your reputation, your life, and the lives of your family members, not to mention lengthy incarceration, require that you receive the best available legal representation if you are going to obtain a favorable result in your case.
At RJT Criminal Lawyer, we do not shy away from these types of cases, and we will do everything within our power to make sure that the investigation and handling of your case provides you with the best possible chance of success. If you are facing a child molestation charge, contact us for a free consultation.