Lewd and Lascivious Acts In California
Under California law, it is a crime to commit a lewd or lascivious act on a child who is under the age of 14. The terms “lewd” and “lascivious” generally mean acts that are inclined to incite arousal, or for the purpose of sexual desire or gratification. Touching a child under 14 with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of themselves or the child is a felony.
The touching does not have to be overtly sexual, as long as it was intended to arouse. It can include touching any part of the child, or through their clothing. Additionally, it is a violation if the defendant caused the child to touch the defendant's body, or caused the child to touch him or herself. Even a minor can be charged with this crime.
Continuous Lewd and Lascivious Acts
Repeated lewd and lascivious acts on a child under 14 carry additional charges. It is a crime to engage in three (3) or more acts of lewd or lascivious conduct with a child under 14 years old when a person resides in the same home with the child, or has recurring access to the child over at least three (3) months in duration.
See CA Penal Code 288.5—continuous sexual abuse of a child
In most cases, an adult having sex with a minor is facing serious criminal and civil penalties. In the extreme, sex with a minor can get a life prison sentence. However, in some cases mistake of age can mean no charges for sex with a minor. All of this depends on the specific facts of the individual case. Sex crime charges can be complex, and one single day may mean the be the difference between being charged with a felony or a misdemeanor.
Common Sex Acts with Minors
Sexual Intercourse With a Minor
Sexual intercourse with a minor is a serious criminal charge, with the potential for life imprisonment. Sexual intercourse is defined as the penetration, however slight, of the vagina or genetalia by the penis. Ejaculation is not required to be considered intercourse.
It can be a misdemeanor or a felony for someone over 21 years old to have sexual intercourse with someone under 16 years old, with a potential for four years in jail. In addition, the defendant may be liable for civil penalties, up to $25,000.
See CA Penal Code 261.5.
Sexual Intercourse With a Minor Within 3 Years of Defendant's Age
It is a lesser charge is sexual intercourse involved a minor, but they were near the age of the defendant. This can include what is known as “statutory rape.” It is a misdemeanor where sexual intercourse occurred with a minor who was not more than three years younger than the defendant. For example, if the defendant is 19 and has sexual intercourse with a 17 year old, this is a misdemeanor.
See CA Penal Code 261.5.
Sodomy With a Minor
Sodomy is sexual conduct which consists of contact between the penis of one person and the anus of another person. Any penetration, however slight, is enough to be considered sodomy. Sodomy with a person under 18 years old is punishable by imprisonment for up to a year.
However, it is a felony for someone over 21 years old to participate in sodomy with someone under 16 years old. Sodomy with someone under 14 years old is punishable by imprisonment for up to eight (8) years. The penalties are increased if a person commits sodomy through use of force, violence, or fear, up to a possible 13 years in prison. Enhanced penalties include threatening to retaliate against the victim or another person in the future.
There are additional provisions to punish sodomy when it involved a minor who was unconscious or asleep, developmentally or physically disabled, intoxicated. It is also against the law to help someone else commit sodomy.
See CA Penal Code 286.
Oral Copulation With a Minor
Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. Oral copulation with a minor can be charged as a felony or as a misdemeanor, depending on the case and the ages of the participants. The penalties are increased if a person commits copulation through use of force, violence, or fear, to include threatening to retaliate against the victim or another person in the future.
Any person 18 or older, who engages in oral copulation with a child who is 10 years old or younger, is guilty of a felony. Oral copulation with a minor under age 10 carries a minimum of 15 years in prison, with a possible maximum prison term of life.
See Cal Penal Code 288a.
Sexual Penetration With a Minor
Sexual penetration is the act of causing penetration, however slight, of the genital or anal opening of a person for the purpose of sexual arousal, gratification, or abuse. Under California law, sexual penetration is treated similarly to oral copulation. Sexual penetration with a minor can be charged as a felony or as a misdemeanor, depending on the case. The penalties are increased if a person commits penetration through use of force, violence, or fear, to include threatening to retaliate against the victim or another person in the future.
See Cal Penal Code 289.
As with most sex crimes, penalties for a conviction can be severe. The circumstances surrounding the crime will affect the extent of the penalties, including if force was used, the age of the victim, and the relation between the accused and victim. Lewd and lascivious acts on a child under 14 is punishable by imprisonment for up to eight (8) years for each charge. If threat or force was involved, prison time can increase to up to ten (10) years. Continuous lewd and lascivious acts is punishable by up to 16 years in prison.
Generally if a person is convicted of child molestation, the defendant cannot have his or her sentence suspended, or receive probation, until a reputable psychiatrist provides a psychosexual assessment regarding the defendant. In addition to prison time, and sex registration for life, a conviction carries financial penalties of fines of up to $10,000. Unfortunately, in California, depending on the individual facts of the case, a defendant charged with child molestation may face a life sentence.
Attempted Lewd Acts on A Child
Attempted lewd or lascivious acts on a child under 14 years old is treated similarly, but is a lesser offense. Somebody may face these types of charges without ever touching a minor.
Defenses to Lewd and Lascivious Acts and Other Sex Crimes with Minors
Consent of the child is not a defense to the crime of lewd and lascivious acts on a child under 14. Sex crime laws are complex, and possible defenses vary greatly depending on the specific facts of the case. A qualified legal team, specializing in defense of sex crimes will look at the facts of each individual case to determine how best to form their defense strategy.
Contact the offices of White Goldstein to speak with one of our defense attorneys. We will provide you or your loved one with superior legal representation. We are dedicated to giving our criminal defense clients the highest level of service. We will thoroughly investigate the charges you or your loved one face and will tirelessly work to have them dismissed.
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