Child Molestation: California Penal Code 288

Sex Crimes - Child Molestation

Aggressive Los Angeles Child Molestation Attorneys

An accusation of child molestation requires a careful reading of the charged statute. A conviction under Penal Code section 288 requires sex-offender registration, but the subdivision, record and statutory tier determine its duration. Public website disclosure is a separate question; registration does not mean every personal detail appears online. Before considering a plea, ask counsel to explain the custody range, applicable registration tier and other consequences of that particular conviction. Possible collateral issues include:

• Difficulty finding employment
• Exclusion from social events
• Damage to their reputation in their community
• Problems finding a place to live
• Disqualification from certain jobs

The Constitution provides legal protections and rights to the accused even before formal charges are filed against them. Therefore, it is important to consult with a Los Angeles child molestation attorney as soon as you become aware of a law enforcement investigation.

The sooner a CA defense attorney becomes involved in a sex crimes case, the better he or she will be able to protect a person from illegal investigative techniques, incriminating statements, improper subpoenas, and other evidence which can impair a defendant's constitutional right to a fair trial. To schedule a consultation with one of our LA Criminal defense lawyers, call the Law Offices of David S. Chesley today at 800-755-5174 or contact us online.

What is Child Molestation?

Child molestation is covered by the California Penal Code's ban on "lewd or lascivious acts." Section 288(a) requires a prison sentence of three, six, or eight years for such acts that are committed upon a child under the age of 14 years. Lewd and lascivious acts are defined as those which arouse, appeal to, or gratify the lust, passions or sexual desires of the perpetrator or the child. Molestation falls under this definition and is therefore prosecuted under this statute. Other sex acts can also meet this legal definition

Section 288(b)(1), rather than section 228, addresses a lewd act on a child under 14 committed through the specified coercive means. It sets base state-prison terms of five, eight or ten years. The charged conduct and proof of the additional element matter; a general description of a serious allegation does not establish this subdivision. The listed means include:

• Force
• Violence
• Duress
• Menace
• The fear of immediate and unlawful bodily injury

Section 288(b)(2) separately addresses a defined caretaker committing the specified coercive act on a dependent person; being a caretaker alone does not establish that offense. Section 288(c)(1) concerns a child age 14 or 15 when the accused is at least ten years older. It permits one, two or three years in state prison, or up to one year in county jail. Exact birth dates, the charged subdivision and the alleged act must be checked. These are different statutory offenses and sentencing choices, not simply aggravating or mitigating labels applied to every child-related accusation.

In addition to these prison terms, a court can also order a defendant who has been convicted of lewd and lascivious acts to pay a fine up to $10,000. The fine is determined by the judge, who must consider all relevant factors, such as the gravity of the offense, and the circumstances in which it was committed. (Interestingly, such a fine cannot be ordered for those defendants convicted under the mitigated sentence for a 14 or 15-year-old victim.)

Problems Presented by Child Witnesses Can Cast Doubt on the Prosecution’s Case

One of the most common problems in a child molestation case is the reliability of the evidence against the defendant. Many such cases do not result in any physical evidence. As a result, the verdict often becomes a case of he said/she said, in which the jury must decide to believe the testimony of either a child victim or a defendant charged with criminal sex acts. He said/she said situations are problematic when all testifying parties are adults. When an involved party is a child, they become fraught with danger to the defendant’s Constitutional rights.

In the past, a child presented as a victim has been granted wide believability by juries. This has been stretched to extreme proportions. For example, in 1983, a Los Angeles mother alleged that her child had been sexually abused at the McMartin Preschool. This caused a domino effect which resulted in hundreds of other allegations (fueled in no small part by the fact that the Manhattan Beach Police Department sent all parents a highly suggestive letter urging them to report any suspected abuse). Eventually, these allegations became absurd. Satanic rituals, secret tunnels, flying witches were all reported by children who had attended the McMartin Preschool. The New York Times also reports that the mental state of the mother who made the initial report was highly questionable. After $15 million dollars spent on a prosecution that spanned seven years, not one conviction was obtained, yet lives were ruined as a result of the mass hysteria.

How a Los Angeles Criminal Defense Attorney Can Help Ensure That Testimony of a Child Witness is Used Fairly

The Supreme Court has issued several opinions to ensure that a defendant's constitutional right to cross-examination is not overrun by the testimony of a child witness. In 1990, the Court held that it was permissible for a child victim to testify via closed-circuit television, rather than being present in the courtroom with the jury and the defendant. This was because the defense attorney still had the opportunity to cross-examine the witness, and the jury was still able to observe the demeanor of the witness in order to determine credibility. (See Maryland v. Craig, 497 U.S. 836.) It was also found to be permissible only when the state could show a sufficiently important public policy in restricting face-to-face confrontation (for which there is a "constitutional preference"). In the Craig case, the child witness was reported to suffer severe emotional trauma at the sight of the defendant. The Supreme Court determined that the State of Maryland had a sufficient interest in protecting children from such trauma.

In addition to these procedural safeguards, a defendant also has the opportunity to attack the substance of a dubious testimony. This is where the skill of an experienced California criminal defense lawyer is indispensable. It is difficult to point out inconsistencies in a child's testimony without becoming off-putting to a jury, but this difficult step is necessary in order to protect a defendant's constitutional rights. An experienced sex crimes defense lawyer in California will be able to highlight inaccuracies in a child's testimony without coming across as a bully. This can be done in a cross-examination, but it can also be done in the opening or closing statements. Testimony of other witnesses can also be used to rebut a child's testimony. In some cases, the inaccuracies in a child's testimony are due to inappropriate interviewing techniques used by law enforcement officials. These, too, must be challenged in order to protect a defendant's constitutional rights. Child development experts can testify about the dangers of suggestive interviews. All of these methods allow a criminal defense attorney in Los Angeles to highlight weaknesses in the prosecutor's case without attacking the child him- or herself.

Experienced Los Angeles Sex Crimes Attorneys to Aggressively Defend Your Child Molestation Case

The consequences of a child-molestation conviction can include imprisonment, fines and registration, with separate questions about civil liability and other effects. An early consultation can help identify the actual charge, preserve evidence and address court obligations. Statements to investigators may become evidence, but neither an interview nor an accusation makes a conviction inevitable. Counsel can review the circumstances of any statement, the applicable safeguards and the prosecution’s burden of proving the charged elements. Seek individual advice before discussing the allegation with investigators or others.

Call (800) 755-5174 today or contact us online to schedule your free consultation with an experienced Los Angeles criminal defense lawyer. We aggressively defend all defendants' constitutional rights throughout the criminal case process.