By The Bulldog Law Criminal Defense Team • Reviewed by a licensed California criminal defense attorney

California Penal Code § 288 is one of the most serious sex crime laws in the state. It covers certain lewd or lascivious acts involving children.

Under § 288(a), a person may be charged with a felony when the prosecution claims that the person willfully committed a lewd or lascivious act on or with a child under 14 and did so with the intent to arouse, appeal to, or satisfy sexual desires. The basic prison terms are 3, 6, or 8 years. When force, violence, duress, menace, or fear is alleged under § 288(b), the prison terms increase to 5, 8, or 10 years.

California law also has a separate provision for certain cases involving children who are 14 or 15 years old when the accused is at least 10 years older than the child.

A § 288 case can affect much more than a person's prison sentence. Depending on the conviction and facts, there may be sex offender registration requirements, restrictions on future employment, family-court problems, immigration concerns, and other long-term effects.

Because of these serious consequences, anyone facing an investigation or charge should speak with an experienced attorney before making statements to investigators.

This guide from The Bulldog Law's sex crimes defense practice explains the law, possible defenses, penalties, and what to do if you are under investigation.

What Does California Penal Code § 288 Prohibit?

Section 288(a) applies when the prosecution claims that a person:

• Willfully committed a lewd or lascivious act

• Did so on or with a child under 14

• Acted with the required sexual intent

The intent requirement is very important.

Not every physical contact with a child is a crime. Children may need help with bathing, dressing, medical care, hygiene, or other daily activities. Parents, relatives, teachers, doctors, and caregivers may also have normal physical contact with children.

The prosecution must prove the required intent under the statute.

That means the circumstances surrounding the alleged contact can become very important.

Why Intent Matters in a § 288 Case

The same physical contact can have very different meanings depending on the situation.

For example, contact may occur during:

• Helping a child get dressed

• Providing medical care

• Helping with hygiene

• Playing with a child

• Providing care after an injury

• Protecting a child from danger

The defense may argue that the contact was not sexual and that the required intent was not present.

The prosecution may instead point to other evidence to argue that the contact was sexual.

This is why the defense needs to look at the entire situation rather than one isolated statement.

Evidence may include:

• What happened before the incident

• What happened after the incident

• Statements made by the accused

• Statements made by the child

• Other witnesses

• Messages and communications

• Family relationships

• Prior interactions

• Medical evidence

• Recorded interviews

The exact facts can make a major difference.

What If There Is No Physical Evidence?

A § 288 case does not always have physical evidence.

Some cases are based heavily on statements or testimony about what allegedly happened. The absence of physical evidence does not automatically end the case.

At the same time, a statement is not automatically true simply because an accusation has been made.

The defense can examine how the statement was made and whether other evidence supports or conflicts with it.

Important questions may include:

• Who first heard the allegation?

• When was it first reported?

• What questions were asked?

• Was the child interviewed more than once?

• Were the interviews recorded?

• Were leading questions used?

• Did the story change over time?

• Were there other people involved in the child's disclosure?

• What was happening in the family at the time?

These questions can help the defense understand how the allegation developed.

How Child Interviews Can Affect a Case

Child interviews can become important evidence in a § 288 investigation.

Investigators may use specially trained interviewers to speak with a child. The goal should be to obtain reliable information without placing unnecessary pressure on the child.

The defense may review the complete interview and the events that happened before it.

For example, an attorney may look for:

• Repeated interviews

• Leading questions

• Suggestive questions

• Changes in the child's answers

• Information provided to the child before the interview

• Statements made by adults around the child

• Gaps in the recording

• Important questions that were not asked

The full recording can be more useful than a short summary of what someone says the child reported.

Common Defenses to a Penal Code § 288 Charge

Every case is different. A defense depends on the evidence and the exact allegations.

1. Lack of Required Sexual Intent

One of the most important issues in a § 288(a) case is whether the prosecution can prove the required sexual intent.

The defense may argue that the alleged contact had a different purpose.

For example, the contact may have happened during:

• Caregiving

• Medical treatment

• Hygiene

• Clothing changes

• Recreation

• Discipline or protection

The surrounding facts matter.

2. The Alleged Contact Did Not Happen

A person may deny that the alleged act occurred.

The defense can then examine the evidence supporting the allegation.

This may include witness statements, interview recordings, messages, photographs, location information, and other records.

3. Problems With Identification

Identification can become an issue when the accused claims that they were not the person involved.

The defense may examine:

• Where the people were

• Lighting

• Distance

• The length of the encounter

• Whether other people were present

• How the identification was made

• Whether the description changed

A careful review of the evidence can reveal problems that are not obvious at first.

4. Problems With the Interview or Disclosure

The defense may also examine how the allegation was first reported and how later interviews were conducted.

Repeated questioning does not automatically mean that an allegation is false. However, the way information was collected can matter when the defense evaluates the reliability of the evidence.

The complete timeline should be reviewed.

5. Challenge Statements Made During the Investigation

Statements made by the accused can become important evidence.

For this reason, do not agree to an interview with investigators simply because they say they want to "hear your side."

A lawyer can communicate with investigators for you and determine what steps should be taken.

What Should You Do If You Are Under Investigation?

If you learn that you are being investigated for a § 288 allegation, take the situation seriously.

Do not try to solve the problem by yourself.

Do not talk to investigators without legal advice

You may feel that explaining the situation will clear up the misunderstanding. However, statements can be taken out of context or used as evidence later.

Speak with a defense lawyer before answering questions.

Do not contact the alleged victim

Do not call, text, visit, or send messages to the alleged victim about the accusation.

Even if you believe the accusation is false, direct contact can create another legal problem.

If there is a protective or restraining order, follow it carefully.

California Penal Code § 273.6 covers certain violations of restraining orders. The Bulldog Law's California restraining-order violation guide explains this issue in more detail.

Preserve evidence

Do not delete messages, photographs, emails, social media posts, or other records.

Keep potentially important evidence and provide it to your lawyer.

Evidence may include:

• Text messages

• Emails

• Phone records

• Photos

• Videos

• School records

• Medical records

• Travel records

• Calendar information

• Other communications

Your attorney can determine which information may help your defense.

Penalties for Penal Code § 288

The penalties depend on the subsection charged and the facts of the case.

Section 288(a)

A conviction under § 288(a) is a felony punishable by 3, 6, or 8 years in state prison.

Section 288(b)

When the alleged act involves force, violence, duress, menace, or fear, § 288(b) provides prison terms of 5, 8, or 10 years.

Section 288(c)(1)

Section 288(c)(1) covers certain cases involving a child who is 14 or 15 years old when the defendant is at least 10 years older.

This offense can be punished by 1, 2, or 3 years in state prison or up to one year in county jail.

The exact punishment can depend on the charge, criminal history, and other facts.

Sex Offender Registration

A conviction under § 288 can create a sex offender registration requirement under California law.

However, it is important not to assume that every § 288 conviction automatically means lifetime Tier 3 registration.

California Penal Code § 290 now uses a tiered registration system. Section 288 convictions are registerable offenses, while specific circumstances and subsections can affect the registration tier and length. For example, § 290 specifically lists § 288(b) and § 288(c) among offenses that can result in Tier 3 lifetime registration, while a § 288(a) conviction can have a different registration result depending on the circumstances.

This is an important issue to discuss before accepting a plea.

The registration consequences can affect housing, employment, privacy, travel, and many other parts of a person's life.

One Strike Law and Additional Sentence Exposure

Some § 288 cases can also involve California's One Strike law under Penal Code § 667.61.

When the required aggravating circumstances are present, the potential sentence can become much more serious, including long life terms.

The exact exposure depends on the facts and the specific circumstances alleged.

This is one reason a defense lawyer should review the charging documents carefully before discussing a plea.

Family Court and Other Legal Problems

A § 288 accusation can create problems outside the criminal case.

For example, a person may also face:

• Protective orders

• Family-court proceedings

• Child custody issues

• Child welfare investigations

• Professional licensing problems

• Employment problems

• Immigration consequences

These matters can move at the same time as the criminal case.

Statements made in one case may also affect another case. Because of this, it is important to coordinate the defense strategy from the beginning.

Immigration Consequences

A § 288 conviction can create serious immigration consequences for a noncitizen.

The exact result depends on the conviction, the person's immigration status, the subsection involved, and other facts.

A noncitizen should not accept a plea agreement without first understanding the possible immigration consequences.

Criminal defense and immigration issues may need to be reviewed together.

The Bulldog Law also provides information about criminal convictions and deportation consequences.

Frequently Asked Questions

Can someone be charged under Penal Code § 288 without physical evidence?

Yes.

A case may rely heavily on statements or testimony rather than physical evidence.

The lack of physical evidence does not automatically defeat the case. However, the defense can challenge the reliability and meaning of the evidence.

The timing of the disclosure, interview methods, changes in statements, and other evidence may all matter.

Is mistake about the child's age a defense to § 288?

For a charge under § 288(a) involving a child under 14, a mistake about the child's age generally does not provide a defense to the age requirement.

The defense usually needs to focus on the elements that the prosecution must prove, including whether the alleged act occurred and whether the required intent was present.

What should I do if I learn I am being investigated?

Speak with a criminal defense lawyer before speaking with investigators.

Do not contact the alleged victim about the accusation. Do not try to arrange a meeting to explain your side. Preserve relevant records and let your attorney handle communications with investigators.

Early legal advice can give your lawyer time to review the evidence and address the case before decisions are made about charges.

What is the sentence for a Penal Code § 288 conviction?

For § 288(a), the basic state prison terms are 3, 6, or 8 years.

For § 288(b), the terms are 5, 8, or 10 years when the required force, violence, duress, menace, or fear is involved.

Section 288(c)(1) has a different penalty range for certain cases involving 14- or 15-year-old victims and a defendant at least 10 years older.

Additional sentencing laws may apply depending on the facts.

Will I have to register as a sex offender?

A § 288 conviction can require sex offender registration.

The length and tier depend on the specific conviction and other circumstances. California law provides for 10-year, 20-year, and lifetime registration periods, with certain § 288 convictions falling into the lifetime Tier 3 category.

Because registration can have lifelong effects, it should be considered when evaluating any plea agreement.

Can a § 288 case be defended?

Yes.

A criminal accusation is not the same as a conviction.

The defense may challenge whether the prosecution can prove the required elements. Depending on the case, issues may include intent, whether the alleged act occurred, identification, statements, interview methods, and other evidence.

The right defense depends on the facts of the individual case.

What to Do Next

A Penal Code § 288 investigation or charge can change your life. The best time to speak with a lawyer is before making statements, contacting the alleged victim, or agreeing to a plea.

• Do not try to explain the accusation directly to investigators.
• Do not delete evidence.
• Do not contact the alleged victim about the case.

Instead, speak with an experienced California criminal defense attorney who can review the evidence and protect your rights.

The Bulldog Law's sex crimes defense team handles serious sex crime investigations and charges throughout California.

You can also learn more about what is considered a sex crime in California.

Contact the firm online or call (888) 928-1609 to discuss your situation.