Lascivious Actions With A Person Under 18 Years of Age

What is California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age?

It is a sex offense in California to engage in a lascivious act with a child.  Generally, a lascivious act with a child is either having physical contact with a child for the purpose of sexual gratification or pleasure.  It is also compelling a child to physically contact either themself or another person for the purpose of sexual gratification or pleasure.  This sex offense is codified in the law books as California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age.  California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age is the applicable code for when the victim is a child under sixteen years of age.  However, California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age is mostly charged by prosecutors when the victim is under the age of fourteen years.  Furthermore, Penal Code 288 is used by prosecutors to charge defendants accused of forcing or threatening a lascivious act on a “dependent”, which includes older persons and person with a mental or physical disability.

Now, we will examine the legal description of California Penal Code 288 Lascivious  Actions with a Person Under 18 Years of Age.  This way you will better understand the most typical issues that are likely to come up during a criminal prosecution.  These issues will likely frame the negotiations between the prosecutor and your Sex Crimes Attorney throughout the criminal prosecution.  The investigatory phase will revolve around these issues.  If there is a trial hearing, the judge or jury will be asked to make decisions on these issues.  Hence, they are very important in determining what happened and the ultimate verdict of innocence or guilt.

  • What is the legal description of California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age?

In California, before a conviction in a trial hearing can occur, where the ultimate verdict is decided by a judge or jury, the prosecutor must prove their case.  To do this, they must prove all of the elements of the particular sex offense a defendant is charged with.  An element is simply a particular fact related to the offense.  If the prosecutor cannot prove all of the elements, then a defendant cannot be convicted at a trial hearing.  Furthermore, the prosecutor must prove all of the elements up to a particular level of certainty.  For a California sex offense, the prosecutor must prove each element to the standard of “beyond a reasonable doubt.”  Note, this is not the only way a conviction can occur.  If a defendant formally confesses to a offense or if they accept a plea offer, they can earn a conviction without going through a trial hearing.  Hence, if this occurs, the prosecutor is not required to prove each element beyond a reasonable doubt.  However, what type of plea offer is given and whether a case even proceeds to trial, is highly dependent on the investigations and negotiations that occur early on during a criminal prosecution.  And again, these negotiations and investigations revolve around the elements of the charges a defendant is facing.

The elements for California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age are the following:

  • A Lascivious act
  • Conducted on a child
  • With the purpose of sexual pleasure or gratification of the defendant, the victim, or somebody else.

Now, we will review each of the individual aspects of the elements of California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age.  There will be a focus on the most typical issues that are likely to come up in a California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age criminal prosecution.

Lascivious Act

A lascivious act is any of the following: purposefully physically contacting a child’s body; OR purposefully compelling a child to physically contact their own body, the defendant’s body, or the body of somebody else.

Purposefully

The language of California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age indicates that a person must have committed the lascivious act with purpose.  If the lascivious act is done accidentally, then that act is not under the criminal liability of California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age.  It is important to understand that it does not matter if the defendant did not know they were breaking the law.  The only action that matter is the action itself.  Additionally, it is irrelevant if the defendant did not intend to hurt or harm the victim.  The courts will focus on whether or not the defendant acted with purpose in committing the conduct that comprised the lascivious act.

The issue of intent can help and hurt a defendant.  On one hand, the issue of intent is hard to prove.  This is because it is hard to get inside the mind of a defendant.  To prove intent, the prosecutor has to rely on circumstantial evidence.  For example, the prosecutor might use the relationship between the victim and defendant, the context in which the physical touching happened, and whether or not there is an innocent rationalization for what happened.  Because lascivious  conduct typically occurs in private situations, lascivious  act cases often turn into “he said/she said” situations.  This works in the benefit of the defendant because often there is only one witness, the victim, who actually knows what happened who can testify.  However, on the other hand, the jury may not give the defendant the benefit of the doubt.

Physical Contact

The language of California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age requires that the defendant physically contact, or cause someone else to, the child’s body.  This includes compelling the victim itself to touch someone or themselves.  Under California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age, physically contacting any part of the child’s body suffices to trigger criminal liability.  Thus, it doesn’t matter if the physical contact occurred on a toenail, as opposed to genitalia.  Any physical contact is enough to trigger this aspect of the elements of California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age.  Furthermore, the physical contact need not be on the skin.  Physical contact even on clothing is enough to trigger this aspect of California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age.

Another important note is that it is irrelevant whether any involved person was actually aroused.  Under California Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age, the courts will only look to see whether there was the intention of creating arousal or sexual pleasure when the physical contact occurred or compelled.

3) What is Penal Code 288(b)(1) Lascivious  Act Achieved Through Strength or Fright

Penal Code 288(b)(1) Lascivious Act Achieved Through Strength or Fright carries more severe penalties.  This aspect of the penal code covers lascivious Actions that are achieved through force, violence, pressure, menace, or threats of bodily injury.

  • Force: The force required to trigger Penal Code 288(b)(1) Lascivious Act Achieved Through Strength or Fright must be significantly higher than that which would be used to create just the physical contact. There must be conduct used to create the lascivious  conduct that goes beyond the lascivious  conduct itself.   For example, hitting the child to frighten them to complete a lascivious  act would trigger Penal Code 288(b)(1) Lascivious  Act Achieved Through Strength or Fright.  Because of the force used, Penal Code 288(b)(1) Lascivious Act Achieved Through Strength or Fright carries more severe punishments.

  • Fear: Lascivious Actions are achieved through fear or fright if the victim is placed in actual fear that is rational. Also, the lascivious act is achieved through fright or fear if the victim is unreasonably scared but the suspect has knowledge of it and utilizes it to achieve the lascivious act.  Whether a victim’s fear is rational is based upon an objective standard.  This means that the courts will look to see if the circumstances in which the conduct occurred would strike fear in an average child.  If a rational child would be placed in fear, then the defendant is subject to criminal liability under Penal Code 288(b)(1) Lascivious Act Achieved Through Strength or Fright.  However, if a rational child would not be placed in fear, then the defendant is only subject to criminal liability under Penal Code 288(b)(1) Lascivious Act Achieved Through Strength or Fright if the defendant took advantage of the victim’s unreasonable fear.

  • Pressure: Under Penal Code 288(b)(1) Lascivious Act Achieved Through Strength or Fright, pressure is any conduct where the usage of a express or indirect threat is used to compel a reasonable person to act or not act in a way they would not otherwise but for the threat. As discussed above, reasonability is determined on an objective standard.  When looking at the issue of pressure, the courts will examine all the fActions surrounding the threat to assess whether or not it was credible and if the victim’s actions were reasonable.  A threat can encompass a wide variety of actions.  And the threat does not just have to be focused on the victim itself.  A threat could be focused on the victim’s family, which would then compel the victim to submit to the will of the suspect.  This would also trigger liability under Penal Code 288(b)(1) Lascivious Act Achieved Through Strength or Fright.  The type of Actions the court will look at to determine whether pressure was used include, but are not limited to the following: the child’s age, their relationship to the suspect, the physical size differences between the various parties, and the place where the pressure was enacted.

  • What are the potential punishments for a conviction under California Penal Code Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age?

The potential punishments under California Penal Code Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age vary based on the child’s age, whether or not strength or fright was utilized, and the individual defendant’s criminal history.

Below, we examine various situations and the connecting potential punishments.

Victim is fourteen or younger (and no strength or fright was utilized)

If the victim was under the age of fourteen when the lascivious act happened, then the conviction will be classified as a felony.  If no force or fear was utilized, then the conviction will be termed under California Penal Code Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age.  If convicted under California Penal Code Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age, the potential punishments may include any and all of the following: anywhere between three to eight years of California state prison time and a sanction of up to a maximum of ten thousand dollars.  Instead of prison time, the judge has the discretion to sentence probation and a maximum of one year in a county jail.  However, even if the judge does not sentence any prison time, a conviction under California Penal Code Penal Code 288 Lascivious  Actions with a Person Under 18 Years of Age is still considered a felony.

The court will review a list of different factors to determine whether a defendant is eligible for probation under California Penal Code Penal Code 288 Lascivious Actions with a Person Under 18 Years of Age.  These factors include the specific fActions of the offense in which the conviction was given and the defendant’s criminal record.

A Lascivious Act with a Victim Under the Age of Fourteen years Using Strength or Fright

If the victim is under the age of fourteen years and the defendant used force or fear to achieve the lascivious act, the conviction will be under California Penal Code 288(b)(1).  A conviction under this statute carries the following potential punishments: anywhere between five to ten years in a California state prison and a maximum sanction of up to ten thousand dollars.  Note, that a conviction under Penal Code 288(b)(1) renders a defendant ineligible for probation and the judge is required to include some prison time into the sentence.

Lascivious Act that creates physical injury to a victim who is under the age of fourteen

If the victim, who is under the age of fourteen, is physically harmed, the potential penalties heavily increase.  A defendant could potentially receive a life sentence in a California state prison.

Victim is Either Fourteen or Fifteen Years Old

If the victim is either fourteen or fifteen years old and the defendant is a minimum of ten years older than the victim, then the relevant statute is Penal Code 288(c)(1).  Penal Code 288(c)(1) is considered a wobbler, which means the prosecutor has the ability to charge the defendant with either a misdemeanor or a felony.  This decision is based on the individual circumstances of the case and the defendant’s criminal record.  A misdemeanor conviction may result in up to one year in a county jail.  Note, a misdemeanor still subjects a defendant to California’s sex offender registry laws.  A felony may result in anywhere between sixteen months to three years in a California state prison or formal probation with up to one year in a county jail.

Victim is Either Sixteen or Seventeen Years Old

If the victim is either sixteen or seventeen years old, then the prosecution will not occur under Penal Code 288.  Rather, the defendant will be subject to criminal liability under California’s statutory rape law (Penal Code 261.5) or California’s sexual battery law (Penal Code 243.4(a)).

Repeat Offenders

If a defendant was convicted of a violation under Penal Code 288 in the past, then the case may be charged under Penal Code 667.71 – California’s repeat sex offender statute.  If this is the case, a defendant could face anywhere between twenty-five years to life in a California state prison.

Other Potential Punishments

In addition to prison time and sanctions, a defendant could also be sentenced with paying restitution to the victim (to compensate them for medicinal or mental treatment), the removal of a professional certification, and be required to register as a sex offender under Megan’s Law.  As the law currently stands, a conviction under Penal Code 288 will require a defendant to register for their entire life. 

5) What should you do if charged with a violation under Penal Code 288?

Charges under Penal Code 288 are serious.  They carry significant penalties that may result in a lifetime of suffering and social stigma.  A defendant should contact and retain an experienced Sex Crimes Attorney as soon as possible.  The earlier you retain a Sex Crimes Attorney, the earlier they can start an investigation and develop evidence on behalf of the defendant.  Otherwise, a defendant might be left to the mercy of a potentially biased investigation of law enforcement.  It is of the utmost importance to gather physical evidence, witness testimony, and circumstantial evidence before memories fade and leads go stale.

Our Sex Crime Attorneys are meticulous, experienced, and passionate about defending sex offenses.  They will be glad to review the specific circumstances of your case and go over with you the important issues that are likely to come up.  They will also discuss with you any potential penalties and any available defenses.  In addition, they will explain how they would go about defending the case and what type of legal strategy will result in the best possible outcome.

Feel free to call for a free consultation at if you are being charged or investigated for a sex crime 424-835-9799.

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