Child Molestation

ACCUSED OF CHILD MOLESTATION IN NORTHERN CALIFORNIA?

EXPERT HELP IS AVAILABLE

• Staff includes former Sex Crime unit lead DA
• Therapy to avoid jail
• Respected psychiatric testimony on your side

In child molestation cases, false allegations are very common. These situations are often a case of a manipulated and impressionable alleged victim making false/confused statements — sometimes relating to events that supposedly happened long ago.

 

The consequences of a child molestation conviction can be life altering and can include:

 

  • Prolonged state prison sentence
  • Mandatory sex offender registration
  • Collateral consequences
  • restriction on where you can live

 

However, our experience shows that these cases often fall apart when challenged.

Call us day or night for a free and confidential case review to discuss your options.

Allegations of child molestation are met with outrage in the community, and taken very seriously by police and child welfare personnel. These outraged attitudes are to the detriment of an accused person – and can unfortunately mean that those investigating the allegations do not always engage in a full and critical investigation, but rather focus on building a case that supports the allegations made.

For your convenience, we have 6 bay located throughout the Bay Area:

  • San Jose Child Molestation Lawyer – 2570 North 1st Street, 2nd Floor, San Jose, CA 95131 (408) 333-9622
  • San Francisco Child Molestation Lawyer – 580 California Street, 12th floor, San Francisco, CA 94104 (415) 666-2316
  • Oakland Child Molestation Lawyer –  1970 Broadway #1145, Oakland, CA 94612 (510) 352-1450
  • Pleasanton Child Molestation Lawyer –  6200 Stoneridge Mall Rd #300, Pleasanton, CA 94588 (925) 218-4730
  • San Rafael Child Molestation Lawyer – 4040 Civic Center Dr #200, San Rafael, CA 94903 (415) 524-7717
  • San Mateo Child Molestation Lawyer – 533 Airport Blvd #400, Burlingame, CA 94010 (650) 763-8766

 

CHILD MOLESTATION, DEFINITIONS, PENALTIES AND ANALYSIS.

In this part of our site, we will explain the various laws surrounding child molestation offenses in California, and help you to understand why having an experienced attorney on your side is vital when you are facing these kinds of accusations. Any child molestation allegation can ruin your life – you stand to lose your job, your family, your freedom, and facing the rest of your life as a registered sex offender. Do not leave the outcome of your case in the hands of an inexperienced attorney – Summit Defense are the best sex crime defense attorneys in the Bay Area, and we are ready to take your case today.

 

At Summit Defense Attorneys, we do not want you to become a victim of the ‘witch-hunt’ mentality that so often surrounds sex offenses. We are experts in representing clients charged with child molestation and child sex offenses, and handle more of these cases than any other firm in the Bay Area. We believe in vigorously defending accusations, and protecting clients from false allegations. We will get involved with your case as early as possible, try to avoid charges being filed altogether, and do what is necessary to present the best defense in your case.

 

What is child molestation?

Child molestation is covered by several offenses at Sections 288 and 289 of the California Penal Code. It is considered molestation of a child to commit sexual acts such as oral copulation, penetration, or to have intercourse, with a juvenile. It can also be considered molestation to touch a child for sexual gratification, even if the touching does not happen on the genital area. Further, to have a juvenile expose themselves, or for an adult to expose themselves to a juvenile, for sexual gratification, can also be considered molestation.

 

There are also several offenses that involve communicating with juveniles, such as sending or showing harmful material to them, or communicating with a juvenile with intent to commit a felony, or to try to arrange a meeting to engage in lewd activities.

 

In many of the offenses under this part of the Penal Code, the age of both the juvenile and the defendant, and the kind of act committed, can change the level of seriousness of the offense significantly. We outline these various offenses in detail in this part of our website, and you can use the menu on the left hand side of the page to navigate to specific offenses. This is a very complex area of the law, and if you have been accused of any offense related to child molestation, you should contact a Summit Defense attorney immediately.

 

 

Why do I need a lawyer?

Not only is it your right, but in this very complex area of the law you need an experienced criminal defense lawyer on your side. Summit Defense Attorneys has handled more cases of child molestation than any other firm in the Bay Area, and we get the best results for our clients.

 

At Summit Defense Attorneys, we know that early intervention is your best chance of success. It is important to contact us as soon as you can, because there may be opportunities to negotiate your case at the start that will not exist later. The stakes in these kinds of matters are high –  a mere accusation can destroy someone’s good name, and a conviction can ruin your life. We have handled countless cases and we work to ensure that clients are given the chance at a fair defense that they deserve. The sooner you contact us, the sooner we can start working on your case.

 

Even if you have made a confession or admitted to some wrongdoing, you still need an experienced criminal defense lawyer. In child molestation cases, the penalties vary extremely – from non-custodial penalties, right up to potential life sentences – depending on the facts of the case and the charged that are filed. And that is where a Summit Defense attorney can make a huge difference in your case, even if you eventually plead guilty.

 

Our attorneys know this area of the law better than any others in the Bay Area – in fact, Summit Defense attorneys include an ex-Sex Crime Unit DA and other former prosecutors and police officers – which means that we know how these cases work and how to tackle them. We know how to negotiate these matters and ensure that the most lenient charges are filed. In many cases, we are successful in having lesser charges filed – we achieve excellent results in child molestation cases, and we often achieve results that mean our clients do not serve time in jail and are able to opt-out of registration. Those kinds of results, however, are only achieved through the dedicated and expert efforts of our attorneys – which is why you should call Summit Defense Attorneys today.

 

Any criminal accusation is a serious matter and, in the case of child molestation charges, may have consequences for the rest of your life – including jail time, and lifetime registration as a sex offender. If you are facing an accusation of molesting a juvenile, contact Summit Defense Attorneys as soon as possible for a free consultation.
 

When you have your first, free consultation with an attorney from Summit Defense, we will discuss the estimated cost of your case with you. Every matter is considered individually, and depends on various factors, such as the seriousness of the charges against you and the stage that the case is up to.  At Summit Defense Attorneys, we will always act in your best interests, and that means keeping costs reasonable without compromising on your defense.

 

INVESTIGATION

The investigation of accusations of child molestation is often conducted differently to other kinds of criminal investigations. Because the alleged victim is a juvenile, there will often be involvement from some kind of social worker – usually staff from child protective services. In fact, it is not unusual for investigations to be started by child protective services and only later handed over to the police.

 

This style of investigation can be misleading, and many people do not initially realize that they are under investigation for a criminal offense. It is also more difficult for an accused person to protect their rights in these situations, which is why legal representation is so important, even in the investigation and pre-file stages of a case.

 

How do child molestation accusations usually arise?

Unlike other crimes, in cases of child molestation it is not the alleged victim who usually reports the matter to police. It is most often an adult who makes the initial report about what they have been told by a child. This could be one of the child’s parents or relatives, or someone that has contact with the child, such as a teacher or doctor. The report could be made to the police, or to child protective services. The second unusual feature of these cases is that reports are often made a long time – sometimes  years – after the alleged molestation occurred. Both of these factors can raise a concern about the truth of a report, which is why your Summit Defense attorney will critically examine the circumstances in which a report was made.

 

In California, reporting requirements compel certain professionals to make a report if they suspect a child has been abused or harmed. Under California Penal Code 11165.7 these people are known as ‘mandated reporters’ and the long list of such professionals includes teachers, childcare workers, clergy, social workers, doctors and other health employees, therapists, and counselors.[1] When a report is received from one of these mandated reporters by either child protective services or the police, they are required to investigate it.

 

The Penal Code does not require these people to be certain, however, that abuse or harm has occurred – the standard is simply that they must have a ‘reasonable suspicion’ that child abuse or neglect has occurred. Further, this suspicion does not have to be based on any kind of specific medical evidence or other indication that abuse occurred – the law simply says that a person can “entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect.”[2] This is obviously a very low standard, and it means that accusations of child abuse can be raised – and then be blown out of proportion – quite easily.

 

It is also common for child molestation allegations to arise during family disputes. So, not only are people dealing with painful events like a family breakup, but an accused person is also forced to defend themselves against abuse allegations. If this has happened to you, representation by your family lawyer is not enough – you need a Summit Defense attorney who specializes in these kinds of criminal child molestation cases to ensure that your interests are protected.

 

How do investigations of child molestation usually proceed?

Once a report is received, an investigation will usually include the following steps:

  • interview of the juvenile;
  • collection of any forensic evidence;
  • interview of other people involved with the juvenile, such as family members;
  • a pretext call; and
  • interview of the accused person.

 

Interview with the juvenile

The interview of the alleged victim is a vital part of the process, because the Prosecution will rely on it as the main evidence in building their case. Someone who has received specific training in interviewing children, such as a psychologist, an investigator from child protective services, or a specialist police detective, usually conducts these interviews.

 

The ideal scenario is that the interviewer approaches their task in a balanced and professional way. Unfortunately, there are many cases where the person who interviews the juvenile already believes that some kind of abuse did occur. This can lead to the interviewer suggesting answers and prompting the child along the way. In the case of children – who are much more open to suggestion, and perhaps feeling intimidated and wanting to please – it can be easy for them to simply follow along and agree. For example, there is a big difference between asking a 10 year-old something like, “Can you tell me what happened last week when you were at the swimming pool?” versus a question like, “Did Mr. Smith pull down your swimsuit and touch you on your private parts when you were at the swimming pool last week?”

 

The McMartin Preschool case is an infamous case from the 1980’s in California that demonstrates how quickly false allegations of child abuse can get out of hand – and how easily such allegations can be fueled by incorrect and biased interview techniques. In that case, a mother of one of the Preschool’s students made a complaint to police that her son had been sodomized by one of the employees, who was also her estranged husband. The investigation quickly spiraled out of control, with investigators questioning hundreds of children. The police built a case against several defendants, with hundreds of charges filed against them – which were eventually found to be based on false allegations and incorrect medical evidence.

 

One of the most damning aspects of the McMartin case was the way children were interviewed. Recordings of the interviews showed that they were led by the adult, and that they were often fed information and repeatedly questioned about something until the interviewer got the answer they wanted. A child who gave evidence against the defendants was later reported in the Los Angeles Times Magazine to say, as an adult:

 

“Never did anyone do anything to me, and I never saw them doing anything. I said a lot of things that didn’t happen. I lied. … Anytime I would give them an answer that they didn’t like, they would ask again and encourage me to give them the answer they were looking for. … I felt uncomfortable and a little ashamed that I was being dishonest. But at the same time, being the type of person I was, whatever my parents wanted me to do, I would do.”[3]

 

This case is a dramatic example of the fact that children do lie, and that bad interview techniques can easily fuel a fire that leads to innocent people being charged. But the Prosecution will not stop pursuing these kinds of charges without a fight – you need Summit Defense Attorneys because we retain the best false memory and suggestive interview experts to discredit unacceptable evidence like this, and win.

 

Forensic evidence

Depending on the nature of the allegation, and if an accusation is recent, there may be a need to collect forensic evidence or have the child medically examined. This can also be an important part of the case – depending on the details of the accusations that have been made, the presence or absence of DNA or injury can be a very powerful indicator of whether the juvenile is telling the truth or not. For example, if there is an allegation of recent anal or vaginal penetration, then a medical examination may be expected to find some evidence of injury.

 

Pretext call

A pretext call is a commonly used investigative technique in child sex cases. This is when the investigators have someone else make a call to the accused person to talk about the allegations. This call will be listened in on and recorded, so the conversation can later be used as evidence.

 

Depending on the case, the police will sometimes get the victim or a family member to call the accused person. For example, if a child’s uncle is accused of molesting the child, the police may get the mother to call the uncle. They would instruct her to say something like “I just want to ask you about something that John told me the other day.” The idea is to get the accused talking about the event, or what was happening around the time of the event. Even if the accused person does not admit to any act during the call, the investigators may still be able to record the accused person admitting to being with the child at the relevant time and place.

 

Given how commonly pretext calls are used in investigations, you should not talk to anyone about child abuse or molestation accusations over the phone. If you suspect that you are on the receiving end of one of these calls, you need to call Summit Defense Attorneys and get legal advice immediately

 

 

Other witnesses

The police or child protective services will also interview any other potential ‘witnesses’ in the case. This does not necessarily mean people who saw what was alleged, but those who the child might have spoken to, or who might have seen or heard something relevant.

 

Again, the investigator should approach these interviews in a balanced way, but that is not always what happens. It is very easy to feed people information about an accusation with which they will agree. Further, there can also be cases where the investigators ignore those people whose story or evidence does not ‘match up’ with the allegation – a decision that can be very damaging to the accused. This is another reason why you need a dedicated criminal defense lawyer from Summit Defense – we will not let these kinds of half-hearted and biased investigations stand, rather, we will engage our specialist criminal investigators to get the ‘full picture’ in your case

 

Interview with the accused

The authorities will always try to conduct an interview with the accused person. However, they may not make it clear that is what they are trying to do. Often, police or child protective services will ask an accused person to simply ‘talk to them’ about what has been alleged, or help them to ‘sort it out’. Even if they say that, though, we strongly advise you to never speak to the police or any other official about child molestation allegations – and certainly never without a lawyer present. Even if you are told that you are not being arrested or charged, anything you say could still be used against you at a later date. If the authorities approach you, you should not speak to them, but instead seek legal advice from Summit Defense Attorneys immediately.

 

As you can appreciate, the investigation of child molestation cases is not typical of other police investigations. They can sometimes seem less formal, or it may not always be clear that a criminal investigation is  occurring. This can give rise to many opportunities for the rights of an accused person to be trampled. If you are accused of any kind of child molestation offense, you should contact a lawyer from Summit Defense Attorneys immediately for advice, to protect your interests, and to ensure that every aspect of the investigation is thoroughly examined.

 

What should I do if the police or child protective services want to ask me questions?

Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police or to anyone from child protective services – your lawyer will speak for you.

 

In these kinds of cases, it is common for a suspect to be questioned without being arrested or held in custody. This kind of situation might occur when the police say that they ‘just want to ask you a few questions’ but you are ‘not under arrest’ – the police only have to advise someone of their rights before questioning them if they are under arrest, or otherwise not free to leave. So, if someone is free to leave at any time, then that can be a way for them to be questioned without the police having to advise them of their rights.

 

This kind of behavior by police or child protective services investigators can lead to people believing that the matter can just be ‘cleared up’ with a brief explanation and discussion. However, this is almost never the case – and anything that is said, even in an informal conversation, can be used as evidence against you. This is why you should be careful to never answer any questions from the police or child protective services without first getting legal advice, and why you should always have a Summit Defense attorney present when speaking to the authorities.

 

If you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them. Being charged and going through the arrest process can be a scary and intimidating process, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer from Summit Defense as soon as you can.

 

We have has defended thousands of criminal cases and it has never, ever helped someone when they’ve spoken to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney from Summit Defense is by far your most effective defense strategy. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.

 

How can Summit Defense help me during the investigation and pre-file stage of a case?

As we have already discussed, the investigation of accusations of child molestation are often not like typical police investigations. They can be confusing, and often involve highly emotional family situations. From the outset, you need advice from an objective and experienced defense attorney who can protect your rights.

 

The attorneys at Summit Defense are not only highly experienced in these kinds of cases, but have worked as police and prosecutors themselves, and know how the system works from both sides. This means that we know what the police are looking for and how the prosecution operates. We also recognize the kinds of opportunities that exist to negotiate a matter before charges are filed, and will always try to keep a case out of the courts. We will use our knowledge and expertise to help you navigate the investigation, and to try to head off charges whenever possible.

 

 

 

ARREST & BAIL

 

What should I do if I am arrested?

You should comply with the police directions, but do not say anything. When you are arrested the police must inform you of your rights, including the right to silence and the right to a lawyer. You should exercise both of these rights – you should not answer any of the police’s questions, you should not agree to an interview, and you should also contact an attorney as soon as possible – in an emergency, Summit Defense Attorneys are available 24 hours a day, 7 days a week.

 

Once you go through the charging process, the police will determine the amount required to secure bail – or, in the most serious cases, you may have to go before a judge to apply for bail.

 

If Im arrested, will I go to jail?

No, not necessarily – almost all criminal defendants are entitled to bail. In some cases, bail is not necessary and you can be released on your own recognizance. But in more serious cases, and that includes most child molestation cases, bail will typically be required – and it may be set at a very high amount. If you are not able to immediately secure your release, we will do everything to ensure that you are released on bail as soon as possible following an arrest. Summit Defense’s first priority will be to use every effort to keep you out of custody so we can properly prepare your defense.

 

Once the charging process is complete at the police station, the amount for bail will be set in accordance with the schedule that is applicable in that county. The amount required to secure your bail will depend on the number and seriousness of the charges filed against you and, once it is paid, you will be free to leave the custody of the police.

 

Child molestation cases are treated very seriously, though, and it is possible that a defendant will not be able to meet the bail set at the police station because it is too high. Alternatively, in the most serious of cases, a defendant may not have the opportunity to secure bail at the police station, but may be required to go before a judge to apply for bail. In either of these situations, your best chance of getting out of custody is to have Summit Defense Attorneys on your side. In difficult cases, we may be able to arrange supervised release or other alternatives to custody where there are some conditions imposed on your release. Our attorneys have the expertise and the experience to present a strong case on your behalf, and to persuade the court to grant you bail.
What happens if I cant meet the police bail, or if Im refused bail at the police station?

If you are unable to secure your release from the police station following an arrest, Summit Defense Attorneys will make an application to the court to secure your release as soon as possible

 

If you are not able to afford the amount of bail set at the police station, we will make a bail motion to reduce the amount required to secure your bail, or  to allow you to be released on your own recognizance.

 

In the most serious of cases, the police may not offer you the opportunity to secure your bail at the police station. This could occur in cases where the charges are very serious, or if you have a history of previous offenses. Even in these cases, however, it is still possible to secure bail – you will be taken before a judge, and he or she will consider your application for bail. Your Summit Defense attorney will present the strongest possible case in support of your bail application, and fight for your release.

 

What factors will the judge take into account when considering a bail application?

The court will consider the allegations being made against you, as well as a host of personal, individual factors when determining a bail application. The first thing that the judge will look at is the seriousness of the allegations being made against you, as well as how strong the evidence in the case seems to be. However, do not make the mistake of thinking that just because you are facing serious charges, you will not be able to secure bail – that is simply not the case, because the judge has to consider other factors as well.

 

Apart from looking at the charges against you, the judge must also consider a host of other, individual factors that are very important when addressing the question of bail. It is vital to keep in mind that the court is not, at this stage, meant to be considering whether anyone is guilty or not, but mainly, whether they will come to court, and whether they are a threat to the community.

 

In a typical case child molestation case, we will urge the judge to look at things like:

 

  • your ties to the community, as evidence of why you would remain in the area;
  • weaknesses in the prosecution’s evidence;
  • we would persuade the judge that you are not a threat to the community, or to anyone involved in the case;
  • what obligations you have as far as employment or family care is concerned, and why these would compel you to stay in the local area and come to court;
  • a lack of criminal history, if appropriate; and
  • the fact that you hired an attorney.

 

Hiring a Summit Defense attorney right from the start of your case sends a very powerful message to the court. It gives an indication of your eagerness to answer and defend the allegations made against you, and provides further reassurance that you will attend court in the future.

 

 

CHILD MOLESTATION OFFENSES

 

ACTS OF SODOMY WITH A JUVENILE

What constitutes the offense of committing an act of sodomy with a juvenile in California?

Sodomy with a juvenile is an offense under California Penal Code 286. To prove this charge against you, the Prosecutor will need to prove the following elements beyond a reasonable doubt:

 

  1. that you engaged in an act of sodomy with someone; and
  2. that you did it in one of the circumstances that is prohibited under the legislation.

 

It is important to note that some of the sodomy offenses under Penal Code Section 286 involve adults and, in those cases, the Prosecutor may have to prove a lack of consent as an additional element. However, in the case of offenses against juveniles, the Prosecutor does not have to prove that there was no consent. This is because the law considers certain groups of people – including juveniles – unable to give legal consent. This does not mean that a juvenile cannot agree to certain acts, of course, but it means that they are unable to give consent in the legal sense because the state says that they are too young to understand the consequences of their actions.

 

Engaged in an act of sodomy

Sodomy is defined in Penal Code Section 286(a) as “sexual conduct consisting of contact between the penis of one person and the anus of another person.” Further, any penetration – no matter how slight – is enough to constitute sodomy. Keep in mind that this legal definition covers events where the victim was penetrated, and also where the victim was the one who penetrated the accused.

 

So, the Prosecutor must prove that there was some sexual contact between the parties. They will try to establish this with the testimony of the victim as to what happened – which much be accepted by the jury beyond a reasonable doubt to convict. There may also be medical evidence, depending on the details of the accusation and how shortly afterwards a complaint was made to police.

 

Circumstances prohibited by legislation

There are several different circumstances when it is illegal to engage in sodomy with a juvenile. The legislation includes these as separate offenses because some offenses are considered more serious than others, and some therefore have more serious penalties attached. The specific circumstances that are criminalized with regards to juveniles are as follows:

 

  • Participating in an act of sodomy with someone under 18 years of age: Penal Code Section 286(b)(1).

You may have heard of the concept of the ‘age of consent’. This refers to the age at which it is legal for people to engage in sexual intercourse. In most cases in California that age is 18 years[4] – hence, it is illegal to engage in an act of sodomy with anyone under 18. While this offense covers all of those cases where the victim is under 18, the other offenses in this category cover offenses with younger victims and that means that this offense is usually charged in cases where the alleged victim is between 16 and 18 years of age, or where the accused and the victim are relatively close in age, for example, where the accused is 20 years of age and the alleged victim is 17.

 

  • A person over 21 years of age participating in an act of sodomy with someone under 16 years of age: Penal Code 286(b)(2).

 

  • Participating in an act of sodomy with someone under 14 years of age where the accused is more than ten years older: Penal Code 286(c)(1).

 

  • Participating in an act of sodomy with someone under 14 years of age, where the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person: Penal Code 286(c)(2)(B).

 

  • Participating in an act of sodomy with a juvenile above 14 years of age, where the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person: Penal Code 286(c)(2)(C).

 

  • Participating in an act of sodomy with a juvenile under 14 years of age, while voluntarily acting in company with another person, where the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person: Penal Code 286(d)(2).

 

  • Participating in an act of sodomy with a juvenile above 14 years of age, while voluntarily acting in company with another person, where the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person: Penal Code 286(d)(2)

 

In all of these offenses, the Prosecution has to prove the age of the victim. Depending on the circumstances, they may also have to prove the age of the accused, the fact that the act was committed in company, and the fact that the offense was accomplished against the victim’s will by use of force etc.

 

Age

The relevant age for the victim and the offender are their ages at the time of the offense. This can be easy for the Prosecution to prove in most cases, but in some cases where the date of the offense is in dispute, it may be an issue. For example, if someone is charged with an offense under Penal Code 286(c)(1) – that the victim was under 14 years of age and the offender ten years or more older – then the age of both parties must be proved. But if the allegation is made many years after the alleged offense, and the victim is not able to accurately state the day or date (or even the year) on which the event happened, then the Prosecutor might not be able to prove this age element of the offense.

 

It is also a defense to charges where the victim is 14 or above that the accused was mistaken about the age of the victim. That is, if the accused person reasonably believed that the alleged victim was 18 years or older. For example, if the accused were a 23-year-old man charged with engaging in an act of sodomy with a 17-year-old male, it would be a defense to the charge if the accused man reasonably believed that the male was at least 18. This can be shown by the circumstances – such as if the two parties met in a bar, they were both drinking alcohol, and the male told the accused that he was 19 years old.

 

In company

This additional element makes a sodomy offense more serious. If the prosecution charge you with an offense under Penal Code 286(d)(2) or (3), they must prove either that you committed the offense with the assistance of someone else, or that you helped someone else to commit the offense – even if you did not commit the act of sodomy yourself. They must also prove that you did so voluntarily, and with the same aim or intention as the other person. For example, consider a scenario where two men work as learn-to-swim instructors. In the change room after a class one day, they encounter a teenage boy. If one man tells the other to “hold him” and then commits an act of sodomy on the boy, and the man holding the boy wanted to help the other man do that, then both men could be equally guilty of an offense under this part of the Code.

 

Force, violence, or fear

When the offense includes the element of force, violence, or fear, it means that the Prosecutor must prove that you did something to compel the victim to participate in the act of sodomy with you. This could be, for example, that you physically held the person down to prevent them from resisting. It could also be through non-physical actions, such as threats that make the person comply. In these offenses, that fear can be achieved through duress, menace, putting the person is fear of immediate bodily harm to themselves or another person, or putting them in fear of retaliation.

 

Is it a felony or a misdemeanor to commit an act of sodomy with a juvenile?

The offense of participating in an act of sodomy with a juvenile under the age of 18 is a ‘wobbler’ – meaning that it can be charged as either a felony or a misdemeanor, depending on the circumstances. This decision is made by the Prosecutor, so if you have been charged with this offense you should speak to a lawyer from Summit Defense Attorneys immediately so we can intervene in the matter as early as possible, limit your exposure to the most serious penalties, and negotiate to have it dealt with as a misdemeanor.

 

All of the other offenses in this part of the Code are felonies, with a range of penalties that escalate in severity depending on the circumstances of the case. The penalties and consequences that are imposed if you are convicted of one of these felonies are very serious, including many years in state prison and lifetime sex-offender registration. If you are charged with felony sodomy with a juvenile, you need expert legal representation from Summit Defense Attorneys.

 

How has Summit Defense successfully defended charges of committing an act of sodomy with a juvenile?

It is common for the victim to allege that the accused penetrated them and, in that situation, medical evidence can be especially important. In a case that Summit Defense Attorneys handled there was a timely report to the authorities but a medical examination of the victim did not reveal any injuries. Despite that evidence – or, rather, the lack of it – the prosecution persisted with the charges against our client.

 

We retained a doctor who was an expert in this field to prepare a report outlining the fact that the kind of assault that the victim had said occurred would be expected to leave significant and visible injuries. Our attorney was able to convince the prosecution that, if the matter went to trial, our expert’s evidence would give the jury no choice but to acquit our client. They agreed, and the charges against our client were dismissed.

 

 

LEWD AND LASCIVIOUS ACTS

What is the offense of committing a lewd or lascivious act on a juvenile in California?

Committing a lewd act upon a juvenile is an offense under California Penal Code 288. There are several different offenses under this section of the Code, but the basis for them all is touching for the purpose of sexual gratification.

 

To prove this charge against you, the Prosecutor needs to prove the following elements beyond a reasonable doubt:

 

  1. that you willfully touched any part of the child’s body, or that you willfully caused a child to touch his/her own body, your body, or another person’s body;
  2. that the juvenile was under the age of 14 years; and
  3. that you did so with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of you or of the child: Penal Code 288(a).
  4. and, if relevant, that the act was committed in certain circumstances that make the offense more serious (for example, with force, violence, or fear) or less serious (the victim is older than 14).

 

Willfully

This means that the Prosecutor needs to prove that you committed the act – that is, did the touching – deliberately. If the touching was accidental, then you could not have committed a lewd act.[5] For example, if you are on a very crowded train and when the train pulls to stop you stumble forward and accidentally touch the breasts of a 15-year-old girl, you have not ‘willfully’ touched her and could not be found guilty of committing a lewd act. On the other hand, if you use the fact that the train is crowded as a ‘cover’ for the touching, but you really did do it on purpose, then you could be guilty of the offense.

 

Touched

For the purposes of this section, the definition of ‘touching’ is very broad. It includes the touching of bare skin, or touching the person’s body through their clothing, and includes touching on any part of their body. The touching can be done by the accused to the victim, or it can also be that the accused person makes the victim touch them.

 

An example of lewd act ‘touching’ would be if the stepfather of a 4-year-old girl rubbed her vaginal area while she was in the bath, and it sexually aroused him, or if he told the girl to touch his penis and she did so.

 

However, the touching does not have to be of an obviously sexual nature, nor does it have to be on the genital area. If the stepfather in the previous example found it sexually exciting to stroke his stepdaughter’s hair, then he may still have committed a lewd act with a juvenile. Even though he doesn’t touch her on her genitals, and doesn’t do something that would generally be considered sexual or lewd, the ‘totality of the circumstances’ may mean that it is considered a lewd act.[6] A case like that might never be prosecuted because, if nothing else happened, it would be unlikely that the child or anyone else would notice – but it does demonstrate how wide the reach of the law is in this area.

 

With the intent of arousing etc

This element requires the prosecution to prove your mental state when the act was committed. They have to show that you did the act for some sexual gratification – either yours or the juvenile’s – but not necessarily that you or the juvenile were actually aroused.

 

This element is often very difficult for the prosecution to prove, especially in cases where the touching was not overtly sexual, as in the previous example of the stepfather stroking his stepdaughter’s hair. And, if the prosecution cannot prove this element of the offense, you must be found not guilty.

 

Age

For most of the offenses under this section of the Code, the Prosecutor needs to prove that the victim was less than 14 years of age. This can be easy for the Prosecution to prove in most cases, but in cases where the date of the offense is in dispute, or the memory of the victim is unclear, it may be an issue.

 

In lewd act cases, the accused cannot claim that they were mistaken about the alleged victim’s age.[7]

 

Circumstances that increase seriousness

There are several different circumstances that, if they are proved to exist at the time when the lewd act was committed, make the offense more serious. These aggravating features are as follows:

 

  • Committing a lewd act with a juvenile under the age of 14 by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person: Penal Code 288(b)(1).
  • A caretaker committing a lewd act with a juvenile under the age of 14, who is a dependent person, by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person: Penal Code 288(b)(2).
  • A caretaker committing a lewd act with a juvenile under the age of 14, who is a dependent person: Penal Code 288(c)(2).
  • Committing a lewd act with a juvenile under the age of 14 where the defendant personally inflicts bodily harm upon the victim: Penal Code 288(i)(1).

 

In all of these offenses, the Prosecution has to prove the age of the victim. Depending on the circumstances, they may also have to prove the fact that the accused was a caretaker and the juvenile a dependent person, the fact that the offense was accomplished by use of force etc., or that the accused personally inflicted bodily harm on the juvenile.

 

Caretaker and dependent

If an offense under Penal Code 288(b)(2) or (c)(2) is charged, then the Prosecutor needs to prove the special status of both the accused and the alleged victim.

 

Under the Code, a caretaker is anyone who operates, owns, administers, or works in (either as an employee, volunteer, or independent contractor) a public or private facility where care is provided for dependent people, such as health care agencies, camps, community care facilities, and foster homes, and also where care is provided in private residences.[8] A dependent person is “any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities.”[9] This includes people who have been admitted as inpatients in health facilities.

 

An example of an offense that involves these elements would be where the accused is a nurse in a hospital, and they commit a lewd act with a 13-year-old who is under their care and is confined to a wheelchair due to a physical disability.

 

Force, violence, or fear

When the offense includes the element of force, violence, or fear, it means that the Prosecutor must prove that you used that to commit the offense. This could be by the use of physical force to restrain the victim, or by a threat that you would hurt the victim if they did not comply. In these offenses, fear can be achieved through duress, menace, or by putting the person is fear of immediate bodily harm to themselves or another person.

 

Personally inflicts bodily harm

To prove an offense under Penal Code 288(i)(1), the Prosecutor has to show that the accused inflicted “substantial physical injury”[10] upon the victim. That injury has to be a result of force used by the accused to commit the act, and they must have used more force than is necessary to simply commit the offense.

 

For example, if an offender tells the victim to sit still while the act is committed, and lightly slaps them, that might be considered a use of force or violence to commit the offense, but there is no way in which the Prosecutor could establish that bodily harm was inflicted on the victim. However, if an offender threatened the victim with a knife, and actually used it to inflict several cuts on the victim’s face, then evidence of that would be likely to prove this element of the offense.

 

Circumstances that decrease seriousness

One instance where the offense is considered slightly less serious is when the victim is 14 or 15 years old, and the accused is at least ten years older than them: Penal Code 288(c)(1).

 

If this offense is charged, the prosecution has to prove the age of both the juvenile and the accused at the time of the offense.

 

Is it a felony or a misdemeanor to commit a lewd or lascivious act on a juvenile?

Whether a lewd act offense is prosecuted as a felony, or whether it may be possible to have it dealt with as a misdemeanor, depends on the age of the alleged victim.

 

If the victim is under 14 years of age, regardless of any other circumstances, the offense is a felony. The circumstances of the offense, though, will determine the range of penalties that apply. The penalties and consequences that result from being convicted of one of these felonies are very serious, including many years in state prison and lifetime registration. If you are charged with a felony lewd act with a juvenile, you need to be represented by the experts at Summit Defense Attorneys.

 

An offense under 288(c)(1) – where the age of the victim is 14 or 15 years – is a ‘wobbler’. This means that it can be charged as either a felony or a misdemeanor, depending on the exact circumstances of the offense and whether you have a criminal record.

 

The other offense in this section of the Code that is a wobbler is under 288(c)(2), where a caretaker commits a lewd act on a dependent person. Although that offense does not specify the age of the victim, this charge is most often filed in those instances where the alleged victim is over 14 years of age .

 

The final decision as to whether a ‘wobbler’ offense is charged as a felony or a misdemeanor, though, is at the discretion of the Prosecutor. If you have been charged with either of these offenses you should speak to an attorney from Summit Defense immediately so we can intervene in the matter as early as possible and limit your exposure to the most serious penalties by negotiating to have it dealt with as a misdemeanor.

 

How has Summit Defense successfully defended charges of committing a lewd or lascivious act?

One of our attorneys represented a 37-year-old man who was charged with multiple counts of committing a lewd act on a child under 14. The 13 year-old daughter of his girlfriend, who lived with them, raised the allegations. The girl provided statements to the police to the effect that our client had fondled her on her vaginal area through her swimsuit. The allegations were that this had happened several times in the family swimming pool, when the mother was inside the house.

 

Our client insisted that he had done none of the things that were alleged. He also told us that he had a lot of trouble with the girl, that she was constantly lying to him and her mother, was missing school, and that she did not like him living in the house. He described several occasions where he had argued with the girl, and how she had said that she “hated him”, wanted him to “fuck off out of her house”, and that she was going to get rid of him.

 

Our attorney insisted that the police obtain a further statement from the mother in relation to the conflict in the family, which did support our client’s version of events. Following that, we subpoenaed the girl’s Facebook account to get access to her page – which, again, supported our client’s version of events and revealed several messages or ‘chats’ with friends where she was discussing ways to make allegations to the police against our client. At the trial, our attorney used this evidence to challenge the victim’s testimony, which destroyed her credibility in the eyes of the jury. They jury returned verdicts of ‘not guilty’ in relation to all of the charges against our client.

 

This case exemplifies the approach that our attorneys take – we examine the evidence critically, we push the authorities to investigate matters properly and we conduct our own investigations where necessary. Summit Defense Attorneys know what it takes to win these cases, and pursue all possible avenues in the defense of our clients.

 

DISTRIBUTE OR DISPLAY HARMFUL MATERIAL TO MINORS

What constitutes the offense of distribution of harmful material to minors in California?

The distribution or display of harmful material to a juvenile is an offense under California Penal Code Section 288.2. To prove this offense against you, the Prosecutor has to prove the following elements beyond reasonable doubt:

 

  1. that you knowingly distributed, sent, exhibited (or offered to distribute, send, or exhibit) any harmful matter to a juvenile, by any means;
  2. that you knew that the recipient was a minor (or that you failed to exercise reasonable care to find out the true age of the recipient);
  3. that you had a specific intent to arouse the lust, passions, or sexual desire of yourself and/or the juvenile; and
  4. that you intended to seduce the minor.

 

The offenses under this section relate to all minors – that is, all people under the age of 18 years.

 

Knowingly distributed, or offered to distribute, etc.

This element refers to any way of distributing or displaying the material, or offering to do so, “including by physical delivery, telephone, electronic communication, or in person”[11]. The word ‘knowingly’ means the accused person must have known what they were doing when the material was sent or displayed – for example, no one can be prosecuted for sending something accidentally.

 

Harmful matter

Penal Code Section 288.2(a)(2) prohibits sending harmful material generally. Under Penal Code Section 288.2(a)(1), the prohibition specifically relates to harmful material “that depicts a minor or minors engaging in sexual conduct”.

 

Material is considered harmful if, when considered as a whole:

  1. It shows or describes sexual conduct in an obviously offensive way;
  2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors; and
  3. An average adult person, applying contemporary statewide standards, would conclude that it appeals to prurient interest.[12]

 

A ‘prurient interest’ is defined as a shameful or morbid interest in nudity, sex, or excretion.

 

Matter that is sexual in nature is not harmful, per se – for example, if an adult shows a child a film that is R-rated, which shows two people having sex, that would not necessarily be an offense under this section, especially without further proof that the material the child saw was offensive and, applying adult standards, appealed to a prurient interest.[13] The Prosecutor would have to prove that the material fit the full definition of ‘harmful’ that has been outlined above, and just showing nudity or sexual activity does not, by itself, meet the requirements.

 

It is important to note that it is a defense to a charge under this section if the material has serious literary, artistic, political, or scientific value, or if the material was used in aid of some legitimate scientific or educational purpose.[14] This means that material shown to teenagers at school for sex education, for example, would not be ‘harmful’ material.

 

Knew recipient was a minor, or didn’t exercise reasonable care

The Prosecution must prove that the accused knew that the person the material that was sent or shown to was under 18 years of age, or that they did not exercise reasonable care to determine the person’s age. In effect, this puts an obligation on adults to be sure of the age of the people that they are dealing with.

 

Depending on the circumstances of the case, this element may be easy to prove – such as if the accused and the alleged victim are well known to each other – but in other circumstances, the accused person may claim that they did not know that the person was under-age, or that they checked with the person but that the juvenile lied or misled them.

 

Specific intent to arouse lust

To prove this element, the Prosecutor has to show that you had the particular intention of sexually arousing yourself, or the juvenile, or both of you, when you sent or showed the material. They could prove this by the circumstances in which the offense was committed, or some other communication that accompanied the material. For example, if a man showed a teenage boy a hardcore pornographic film, and encouraged the boy to masturbate with him while they both watched it, that would demonstrate a specific intent to arouse the lust or sexual desires of both of the parties.

 

Intended to seduce the minor

An intention to ‘seduce’ means an intention to “entice the minor to engage in a sexual act involving physical contact between the seducer and the minor”.[15] So, the Prosecution must prove kind of intention on behalf of the accused.

 

If the Prosecutor cannot prove that the accused had this intention, then they are not guilty of the offense – even if they had sent harmful material to a juvenile. For example, in a 2003 case[16], a defendant had sent sexually explicit material to two boys, via the internet. He had also engaged in extensive online communication with them, during which he encouraged them to masturbate to the images he had sent. However, there was no indication in the communication between the parties that the man had ever suggested that he meet the boys, or that he had ever tried to arrange a meeting or any kind of physical contact with them. For that reason, the man in that case was found not guilty of this offense.

 

Is it a felony or a misdemeanor to distribute harmful material to a minor?

Both of the offenses under this section are ‘wobblers’ – they can be charged as either a felony or a misdemeanor, depending on the exact circumstances of the offense and whether you have a criminal record. However, the final decision is up to the Prosecutor, which means that you should speak to an attorney from Summit Defense immediately if you have been charged with distributing harmful material to a minor. We specialize in these kinds of cases, and we have a successful track record when it comes to intervening in cases early to ensure that they are dealt with as misdemeanors, or dismissed, whenever possible.

 

How has Summit Defense successfully defended charges of distributing harmful material to a minor?

In several of these cases that Summit Defense has handled, we have been able to avoid charges being filed altogether. There have been several instances where our clients were investigated and  questioned by the police in relation to a potential charge of distributing harmful material to a minor, but where we found that the evidence just did not stack up in relation to all of the required elements.

 

Luckily, these clients called us as soon as the police contacted them – and our attorneys were able to intervene immediately. In negotiations with the police and the prosecution, we were able to point out, in one instance, the lack of evidence to prove that the material was ‘harmful’ in the sense required by this section. In another instance, we demonstrated that while there was online communication, there was no way of proving an intention to seduce the minor – that is, there was no suggestion our client tried to or even wanted to meet with the juvenile.

 

In these matters, the authorities agreed to drop the cases before the charges were  filed because our attorneys persuaded them that they would not be able to succeed at trial. As experts in the field, Summit Defense Attorneys are able to quickly come to grips with the evidence in a case, and just as quickly detect flaws in the evidence – which means that we are more successful in getting results for our clients at the pre-file stage.

 

COMMUNICATING WITH A MINOR WITH INTENT TO COMMIT A FELONY

What constitutes the offense of communicating with a minor with intent to commit a felony in California?

California Penal Code Section 288.3(a) makes it an offense to communicate with a minor with the intention of committing certain felony offenses. Those felony offenses include:

  • kidnapping;
  • rape;
  • sodomy;
  • lewd conduct;
  • forcible sexual penetration; and
  • certain child pornography offenses.

 

To prove this offense against you, the Prosecutor has to prove the following elements beyond reasonable doubt:

 

  1. that you contacted or communicated, or attempted to contact or communicate, with a minor;
  2. that you knew, or reasonably should have known, that that other person was minor; and;
  3. that you had the specific intent to commit one of the felonies set out in the section.

 

For any charge under this section, the Prosecutor has to prove that the alleged victim was under 18 at the time of the offense.

 

Contacted or communicated, or attempted to

For the purposes of this offense, this includes direct or indirect communication achieved personally or by an agent or agency, any print medium, any postal service, any communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system.[17]

 

Knew, or reasonably should have known, other person was a minor

The prosecution has to prove that you had actual knowledge of the age of the alleged victim, or that it is reasonable to expect you to have known what their age was.

 

In some cases, this can be a difficult element for the Prosecutor to prove. Many of the offenses charged under this section involve online communication. As everyone knows, it is very easy to fake your identity and lie about your age on the internet – for example, people can post fake profiles, or profiles with inaccurate information, on Facebook, on chat sites, and on any kind of online dating, meet-up, or networking site.

 

Imagine that an adult man is communicating with someone online through an adult, gay dating site, and the profile of that person says that they are a 21-year-old man, and there are  pictures where the person looks 21 years old. Even if their communication is sexual in nature, and the two discuss meeting up to have anal sex, the adult could not the be convicted of this offense if the other person turned out to be a juvenile. That is because he did not know the true age of the other person, nor could he reasonably be expected to when the site is for adults and all of the information he had led him to believe that the other person was 21.

 

Intent to commit felony

The final element that the prosecution must prove is that you had the specific intent to commit one of the felonies set out in this section. If they cannot prove that you specifically meant to do that, then any charge under this section must fail.

 

For example, consider a charge of communicating with a minor with the intent to commit an act of sodomy. The evidence may show that a man is engaged in online communication with a 13-year-old boy. Their online communication consists of talking about their mutual love for Star Wars movies. The man and the boy have  exchanged photos of themselves dressed up as their favorite Star Wars characters. The man has printed some of the photos out, however, and he has stuck one up on a wall in his apartment. He has sexual fantasies about the boy, and has  cut the boy’s face out of some of the photos and stuck them over the faces of men pictured in gay pornographic magazines. The police find those magazines and charge the man.

 

However, on that evidence, the man could not be found guilty of this charge. This is because, when communicating with the boy online, the man never discussed anything sexual, nor did he ever try to arrange a meeting with the boy, or suggest anything of that kind. This means that the man never formed the specific intent to commit the felony, that is, he never actually formed the intent to actually have anal sex with the boy, nor did he do anything to try to accomplish that.

 

In such a case, the accused would have to be found not guilty because the Prosecutor could not prove this element of the offense. On the other hand, if the man did make such a suggestion to the boy, or tried to arrange a meeting with him, then he might be convicted of the offense.

 

Is it a felony or a misdemeanor to communicate with a minor with intent to commit a felony?

Communicating with a minor with intent to commit a felony is a felony itself, and as far as penalty is concerned, the offense is actually treated the same as an attempt to commit the intended offense. There is also a more serious felony offense at Section 288.3(c), where an offender has previously been convicted of this offense.

 

Being charged with a felony is very serious, and the consequences for this offense in particular can include many years in state prison, as well as lifetime registration as a sex offender. When facing a serious charge with such grave consequences you cannot afford to gamble your future – you need an expert attorney from Summit Defense on your side.

 

How has Summit Defense successfully defended charges of communicating with a minor with intent to commit a felony?

Most of the cases that we encounter under this section of the Code involve online encounters between adults and juveniles. We have also dealt with several cases where our clients were engaged in communication online with a police officer who was posing as a juvenile. In one of those cases, our client was a 19-year-old man who visited several different online forums of an adult, sexual nature. He communicated on a private, one-on-one basis with a number of other young women who he had met through those forums.

 

On one occasion, he was chatting to a person who told him that she was 16. He told her that they could not talk about anything related to sex, because she was underage. Despite that, in the course of their online conversations the other person kept propositioning our client and suggesting that they meet and engage in various sex acts. After several weeks of this, our client eventually agreed to meet with the other person, but told her that he “didn’t think they should have sex”. The other person he had been chatting to, though, was a police officer.

 

Once he had agreed to that meeting, the police charged him with several offenses, including communicating with a minor with intent to commit a felony (lewd act). We were unable to stop the charges from being filed against him, however, we did continue negotiations with the Prosecutor over several months. We argued that the police had engaged in entrapment when communicating with our client online, and also that they could not prove beyond reasonable doubt that our client had the specific intent to commit a lewd act. Eventually, our attorney was able to convince the Prosecutor to drop all of the charges against him. This determined and professional approach is something that Summit Defense Attorneys bring to all of their cases.

 

ARRANGING A MEETING WITH A MINOR FOR THE PURPOSE OF COMMITTING A LEWD ACT

What constitutes the offense of arranging a meeting with a minor for the purpose of committing a lewd act in California?

To prove this offense under California Penal Code 288.4, the Prosecutor has to establish the following elements beyond reasonable doubt:

 

  1. that you arranged a meeting with a minor, or a person you believed to be a minor;
  2. that in arranging the meeting, you were motivated by an unnatural or abnormal      sexual interest in children; and
  3. that you had a specific intent to commit a lewd act – that is, expose your genitals or rectal area, or have the child expose his or her genitals or rectal area, or engage in lewd or lascivious behavior, including touching the body of the child, with the specific intent to arouse or gratify the sexual desire of either you of the child.[18]

 

Arranged a meeting with a minor, or person believed to be a minor

To prove this element, the Prosecutor must show that you actually arranged a meeting. They also have to prove that the meeting was with someone that you knew was under 18, or that you believed was. It is not enough, for example, for the Prosecution to have evidence that you were chatting online to a juvenile and said something like “we should meet up one day” but nothing more.

 

Motivated by an unnatural or abnormal sexual interest in children

The prosecution must prove that you arranged the meeting for this reason. Even if some of the communication between the parties was of a sexual nature, if the accused person had some other motivation for arranging the meeting with the juvenile, then they cannot be guilty of this offense.

 

Specific intent to commit a lewd act

Again, the prosecution must prove that you had this specific intent – it is not enough that a meeting was arranged with a minor without proof that there was also this intention to commit a lewd act. So, even if the two parties were engaged in communication that had a sexual element, and then they arranged a meeting, unless the prosecution can prove this specific intent on the part of the accused, they will not succeed in proving this charge.

 

Consider an example where an adult and a juvenile may have been engaging in online communication that had both sexual and non-sexual elements. They are both fans of the same football team, and agree to meet to go to a game together one day. In such a situation, where there is no evidence of anything else other than an intention to go to a football game together, the adult would not be guilty of the offense.

 

Is it a felony or a misdemeanor to arrange a meeting with a minor for the purpose of committing a lewd act?

If someone commits this offense for the first time, and has no history of sex offenses that require registration[19], then it is dealt with as a misdemeanor. However, if an accused person has previously been convicted of a sex offense that requires registration, this offense will be treated as a felony. Further, if the accused person not only arranges a meeting with a minor, but actually goes to the meeting place at about the arranged time, the offense is treated as a felony – regardless of whether the accused has a criminal history or not.[20]

 

Whether you are facing this charge as a misdemeanor or a felony, the consequences can include time in jail and lifetime registration as a sex offender. If you are charged with arranging a meeting with a minor for the purpose of committing a lewd act, you need expert legal representation from Summit Defense Attorneys.

 

How has Summit Defense successfully defended charges of arranging a meeting with a minor for the purpose of committing a lewd act?

This is an offense that is often charged as a result of online ‘sting’ operations by the police. In one case, our client – a 19-year-old man – was engaged in online communication with a person he believed to be a 16-year-old girl, but who was actually a police officer. Despite our client’s protestations that they could not discuss sexual things, the other person kept propositioning our client and suggesting that they meet in to engage in various sex acts. After several weeks of this, our client arranged a meeting with the other person, but told her that he “didn’t think they should have sex”.

 

Once he had agreed to that meeting, the police charged him with several offenses, including arranging a meeting with a minor for the purpose of committing a lewd act. We were unable to stop the charges from being filed against him, however, we did continue negotiations with the Prosecutor over several months. We argued that the police had engaged in entrapment when communicating with our client online. We also argued that they could not prove beyond reasonable doubt that our client had the specific intent to commit a lewd act, because he had told the other person that they shouldn’t have sex. Our attorney was eventually successful in persuading the Prosecutor to withdraw all of the charges against him.

 

CONTINUOUS SEXUAL ABUSE OF A CHILD

What constitutes the offense of continuous sexual abuse of a child in California?

If you engage in ‘substantial sexual conduct’ or commit lewd acts with a juvenile three or more times over a period of at least three months, you may be charged with continuous sexual abuse of a child under California Penal Code 288.5.

 

To prove this charge against you, the Prosecutor needs to prove the following elements beyond reasonable doubt:

 

  1. that you live with, or have recurring access to, a child under 14 years of age; and
  2. that, over the course of three months or longer, you commit three or more lewd acts, or engage in substantial sexual conduct three or more times, with the child.

 

Live with, or have recurring access

This element requires the prosecution to prove that the parties lived together, or that there was some other relationship that meant the accused had ongoing contact with the child. Examples of people who can be charged under this section include child-care workers, teachers, coaches, babysitters, and relatives who do not live with the alleged victim.

 

The law does require that there be some kind of relationship between the parties that gives the accused access to the child, beyond that access required to commit the offense – for example, it might not be enough that the accused is a neighbor of the child, if the child or the child’s family does not have regular contact or some kind of relationship or friendship with that neighbor. This was explained in a 2002 case, where the court talked about the definition of “recurring access” and said the relationship should be:

 

“ “separate and apart from the relationship formed and characterized by the forbidden sexual activity.” … the term “ongoing relationship” [means] simply a legitimate relationship of some kind with a child that provides an adult with opportunities to engage in an illegitimate sexual one. Strictly speaking, it is more correct to say that the perpetrator must have some legitimate “means of access to” rather than an “ongoing relationship with” the child. Although the means of access will often be in the form of an ongoing relationship with a child, it can also sometimes assume the form of a relationship with a child’s parent.”[21]

 

Child under 14 years

The Prosecutor must prove that the alleged victim was under 14 years of age at the time of all of the acts charged. If any or all of the acts occurred when the child was above the age of 14, then they cannot be counted as an act for the purpose of proving this offense.

 

Three or more acts, over at least three months

This element requires the prosecution to prove multiple instances of sexual conduct over a period of time. One of the reasons why this offense was created was to cover situations where a juvenile was molested repeatedly over some time, but where they could not remember the exact dates or times of each incident.[22] Section 288.5(b) makes the Prosecutor’s job easier – it states that the jury “need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.”

 

So, for example, if the Prosecutor mounts a case with evidence of five different instances of ‘substantial sexual conduct’, the jury does not need to agree that all five have been proved – it is enough that every member of the jury finds that at least three incidents happened, regardless of which incidents those are.

 

Lewd acts

If the Prosecutor is alleging that three or more lewd acts took place, then they must establish that some kind of willful touching took place, for the purposes of sexual gratification. In Penal Code Section 288, a lewd or lascivious act is defined as willful touching of a child, or having the child touch the accused, done with the intent to sexually arouse the accused or the child. The touching does not need not be done in a lewd or sexual manner, and can be contact with bare skin, with the genital area, or also on any other part of the child’s body, and even through their clothes.

 

Substantial sexual conduct

This is generally more serious conduct than would constitute a lewd act, and is defined to mean “oral copulation or masturbation of either the child or the perpetrator, or penetration of the child’s or perpetrator’s vagina or rectum by (the other person’s penis/

[or]

any foreign object).”[23]

 

Is continuous sexual abuse of a child a felony or a misdemeanor?

This is a very serious offense and, as such, is always treated as a felony. The maximum penalties for this offense include years in state prison, as well as lifetime registration as a sex offender. This is not a charge that anyone can afford to take lightly, or where you should have inadequate legal representation – if you are charged with continuous sexual abuse of a child, the only way to fight it or to mitigate the penalties that you might be facing is by having the best lawyer possible – and that means being represented by Summit Defense Attorneys.

 

How has Summit Defense successfully defended charges of continual sexual abuse of a child?

We recently represented a young man who was charged with the offense of continuous sexual abuse of a child. The charge related to an alleged eight incidents over a period of several months, and were said to have occurred eight years before the time the charges were finally filed. Our client had previously been involved in coaching the child’s sporting team, but neither the child nor client had had any contact with each other for years.

 

Our examination of the evidence revealed that the alleged victim had supposedly remembered the incidents during ongoing therapy that she was undergoing in relation to sexual assaults that had been committed by her father. Our client had every sympathy for the fact that the young woman had been abused by her father, but vehemently denied that he had done anything to her all those years ago.

 

We consulted with an expert in sexual assault therapy, and retained them to assist with our client’s defense. We were able to bring expert evidence before the jury that established that, due to the effects of trauma, victims sometimes confused the identity of their attackers in their memories. That evidence, combined with the fact that the victim was inconsistent and confused in her testimony about the details of the incidents, was more than enough to raise a reasonable doubt in the minds of the jury, leading to an acquittal for our client.

 

SUBSTANTIAL SEXUAL CONTACT WITH A CHILD 10 YEARS OR YOUNGER

What constitutes the offense of substantial sexual contact with a child 10 years or younger in California?

Under California Penal Code 288.7, it is an offense for an adult to have sexual intercourse, or to commit sodomy, sexual penetration, or oral copulation, with a child under 10 years of age. If you are charged under this section, the Prosecutor needs to prove the following elements beyond reasonable doubt:

 

  1. that you engaged in sexual intercourse, sodomy, oral copulation, or sexual penetration; and
  2. that you engaged in the act with a child who was under 10 years of age.

 

Sexual intercourse, sodomy, oral copulation, or sexual penetration

Collectively, the various acts covered by this offense are referred to as ‘substantial sexual contact’. The definitions of these acts cover a wide range of sexual conduct.

 

‘Sodomy’ means contact, no matter how slight, between the penis of one person and the anus of another, and even the slightest act of penetration will constitute sodomy.[24] Further, ‘sexual intercourse’ is sexual penetration of the vagina by the penis – again, no matter how slight. ‘Oral copulation’ is contact between the mouth of one person and the genitals or anus of another person.[25] ‘Sexual penetration’ refers to “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”[26]

 

To prove this element, the Prosecutor has to prove beyond reasonable doubt that at least one of these acts occurred.

 

Child under 10 years of age.

This is one of the most serious criminal charges that exists, and the essence of the offense is that the Prosecutor must prove that the victim was under 10 at the time of the sexual contact. In many cases, this means that they will usually have to prove the date of the offense with some certainty as well.

 

For example, consider an allegation of substantial sexual contact that is made by an alleged victim when they are an adult. It is not enough for the Prosecutor to elicit testimony such as “I remember that I was wearing my elementary school uniform when it happened” – that is, to try to prove that the offense occurred when the person was a child in elementary school. This is because children usually attend elementary school up until the age of about 11 or 12 years. If the Prosecutor cannot prove that the offense occurred when the child was under 10 years of age, then some other offense might be able to be proved, but this charge would fail.

 

Is substantial sexual contact with a child 10 years or younger a felony or a misdemeanor?

An offense of substantial sexual contact with a child is a felony, and one of the most serious criminal charges that anyone can possibly face.

 

Not only is the offense a felony, it carries a maximum penalty of life in prison – for each count. Further, an act of oral copulation or sexual penetration carries a minimum term of fifteen years in prison[27], and an act of sexual intercourse or sodomy carries a minimum term  of twenty-five year in prison[28].

 

These penalties make an offense under Penal Code 288.7 the most serious child sex offense you can face, and one of the most harshly punished crimes in California. Quite simply, a lot of people who are convicted of this charge will never get out of prison. That is why you need the best representation possible – whatever the circumstances of the offense or the stage of the case, you need to call Summit Defense Attorneys immediately if you are facing a charge of substantial sexual contact with a child under 10. Our experienced attorneys, along with experts and private investigators, will start working on your case straight away.

 

How has Summit Defense successfully defended charges of substantial sexual contact with a child 10 years or younger?

We have represented many clients in cases that involved charges of substantial sexual contact with a child under 10, and Summit Defense attorneys are expert in defending these kinds of child sex charges. In one particularly complex case that we handled, our client was facing over 30 counts of various child sex and child pornography charges. He came to us from another firm because they were trying to convince him to take a plea deal – but he wanted to defend the matter, and was determined to not accept a plea to something that he did not do.

 

The charges centered around a few videotapes and DVDs that the police had found in our clients home. Those tapes and DVDs contained recordings of boys doing things of a sexual nature – either alone or with each other – but did not contain any footage of our client at all. One of the boys was very young – under 10 years – and two were teenagers between the ages of 15 and 17 years. The recordings showed things such as the young boy inserting objects into his anus (which gave rise to one of the charges of ‘sexual penetration of a child under 10’) or the young boy performing oral sex on a teenage boy. When interviewed by the police, the two people who appeared as teenage boys in the videos said that our client had forced them to make the recordings, and had also told them to make the recordings with the younger boy. They also told the police that our client was present when some of the recordings were made. Our client denied any knowledge of the recordings, or the activities that had been recorded. He hadn’t seen the boys for several years, as they no longer lived in the town.

 

At the time the videos were made, our client ran a computer repair business from his home. He often had several computers in his house, as well as things like digital cameras and video recorders. The two teenage boys involved in this case were actually school friends of our client’s son, and knowing that they did not have this equipment at home, our client often allowed them to come over and use his computers. They boys had also previously used his video camera to shoot footage for a school project. Sometimes our client left them alone in the house when he went to customer’s homes.

 

We immediately investigated the backgrounds of the alleged victims in this matter – with startling results. We discovered that the two people who were teenagers at the time the videos were made were now 22 years old, and serving sentences in prison in relation to manslaughter charges. Our investigation revealed that they had both received reductions in their sentences in return for agreeing to provide evidence against our client. We also found out that the youngest boy was in foster care, and had made several complaints against previous carers in the system that had been found to be unsubstantiated. We continued to investigate the background and character of these witnesses, including subpoenaing their old school records and speaking to family, friends, and teachers.

 

Our investigations provided a much more full picture of the case than either the Prosecutor or our client’s previous lawyers had obtained. Most importantly, it gave us substantial material to use in attacking the credibility of the witnesses at trial. The evidence that we were able to unearth was enough to destroy the credibility of the main witnesses in the prosecution’s case, and to raise reasonable doubt in the minds of the jury – resulting in ‘not guilty’ verdicts for our client. In short, the hard work of our Summit Defense team was the difference between freedom and life in prison for our client.

 

ORAL COPULATION WITH A JUVENILE

What constitutes the offense of oral copulation with a juvenile in California?

Oral copulation with a child is an offense under California Penal Code 288a. If you are charged with this offense, the Prosecutor will have to prove the following elements of the offense beyond reasonable doubt:

 

  1. That you participated in an act of oral copulation with a juvenile;
  2. The age of the victim; and
  3. If relevant, that you did so in one of the circumstances of aggravation set out in the legislation.

 

Participated in an act of oral copulation

The definition of ‘oral copulation’ is “the act of copulating the mouth of one person with the sexual organ or anus of another person”[29]. Penetration is not required. It is more broad than what many people refer to as a “blow job”, and can involve either the offender putting their mouth on the alleged victim’s genitals or anus, or the alleged victim putting their mouth on the offender’s genitals or anus.

 

It is important to note that consent is not an issue in Penal Code Section 288a. offenses involving juveniles.  That is, the Prosecutor does not have to prove that there was no consent. This is because the law considers certain groups of people – including juveniles – unable to give legal consent. This does not mean that a juvenile cannot agree to certain acts, of course, but it means that they are unable to give consent in the legal sense because the state says that they are too young to understand the consequences of their actions. So, even if a juvenile consents to an act of oral copulation, an offense may still have been committed.

 

Age of the victim

The Prosecutor must prove the age of the victim at the time of the act, and in some cases the age of the offender. This is important because there are many different offenses in this section, and several are distinguished by the age of the parties. These are as follows:

 

  • Penal Code 288a(b)(1): oral copulation with a person under 18 years of age.
  • Penal Code 288a(b)(2): oral copulation by a person over 21 years of age with a person under 16 years of age.
  • Penal Code 288a(c)(1): oral copulation with a person under 14 years of age by a person who is more than ten years older.
  • Penal Code 288a(c)(2)(B): oral copulation with a person under 14 years of age, accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
  • Penal Code 288a(c)(2)(C): oral copulation with a juvenile over 14 years of age, accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
  • Penal Code 288a(d)(2): oral copulation with a person under 14 years of age, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person.
  • Penal Code 288a(d)(3): oral copulation with a juvenile over 14 years of age, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person.

 

If the allegation involves a victim under the age of 14, then the defendant’s knowledge of the age of the victim is irrelevant. However, for those offenses where the victim is 14 or above, the defendant is entitled to raise a defense of mistake of fact  as to the victim’s age if they reasonably and actually believed that the other person was at least 18 years old.

 

Circumstances of aggravation

Apart from the age of the victim, there are two other elements that make this offense more serious:

  • that the act was accomplished by the use of force, fear, violence etc; or
  • that the act was committed with someone else, or with the assistance of someone else.

 

When the offense includes the element of force, violence, or fear, it means that the Prosecutor must prove that you used that to commit the offense. This could be by the use of physical force to restrain the victim, or by a threat that you would hurt the victim if they did not comply. In these offenses, fear can be achieved through duress, menace, or by putting the person in fear of immediate bodily harm to themselves or another person.

 

If the Prosecutor is alleging that the offense was committed with someone else – that is, ‘in company’ – then they must prove either that you committed the offense with the assistance of someone else, or that you helped someone else to commit the offense – even if you did not commit the act of oral copulation yourself. They must also prove that you did so voluntarily, and with the same aim or intention as the other person. For example, consider a scenario where two men work as learn-to-swim instructors. In the change room after a class one day, they encounter a teenage boy. If one man tells the other to “hold him” and then commits an act of oral copulation on the boy, then both men could be equally guilty of an offense under this part of the Code.

 

Is oral copulation with a juvenile a felony or a misdemeanor?

Depending on the exact circumstances of the offense, this can be charged as either a felony or a misdemeanor.

 

A charge under Penal Code 288a(b)(1) – oral copulation with a person under 18 years of age – is the one offense under this section that may be dealt with as a misdemeanor. In reality, this charge applies to those situations where the alleged victim is 14 years or older, and there are no aggravating circumstances present. The offense is a ‘wobbler’ – meaning that it can be treated as either a felony or a misdemeanor, depending on the circumstances of the offense and the criminal record of the defendant.

 

The final decision as to whether a ‘wobbler’ offense is charged as a felony or a misdemeanor, though, is at the discretion of the Prosecutor. If you have been charged with this offense, you should speak to an attorney from Summit Defense immediately so we can intervene in the matter as early as possible and negotiate to have it dealt with as a misdemeanor.

 

In all other instances, a charge of oral copulation with a juvenile is dealt with as a felony. The penalties for all felonies are more serious than for misdemeanors, but if one of the circumstances of aggravation exists, then penalties can be  higher. In all cases, registration as a sex offender is a further consequence of conviction. If you are charged with felony oral copulation with a juvenile, you need the best representation – and that means being represented by the experts at Summit Defense Attorneys.

 

How has Summit Defense successfully defended charges of oral copulation with a juvenile?

Summit Defense Attorneys have a track record of successfully defending charges of oral copulation with a juvenile. In one such case, our client was a young man charged with oral copulation with a juvenile, based on his encounter with a girl at a party. He had met her at a house party of one of his college friends, and he described how they spent part of the evening talking to each other, drinking, and kissing. The girl then suggested that they go to a private room inside the house, where she performed oral sex on him. Someone burst into the room during the act and filmed part of the incident. The footage was later passed around through social networking sites, including Facebook.

 

While both parties were very embarrassed, criminal charges arose when the girl’s parents found out about the footage and contacted the police – even though our client didn’t know at the time, the girl was only 16 years old.

 

Our attorney immediately contacted the Prosecutor in the matter and began negotiations. She ensured that the charge was filed as a misdemeanor – this reduced the exposure of our client, regardless of the outcome. At trial, we successfully raised a ‘mistake of fact’ defense as to the age of the victim. Given the circumstances in which the parties met, and the fact that they were both drinking alcohol at a college party, the jury believed our client when he told them that he thought the girl was over 18, and a not guilty verdict was returned.

 

SEXUAL PENETRATION OF A JUVENILE BY MEANS OF FORCE etc

What constitutes the offense of sexual penetration of a juvenile by means of force etc. in California?

Sexual penetration of a juvenile by means of force etc. is an offense under California Penal Code 289. To prove this charge against you, the Prosecutor would have to prove the following elements:

 

  1. that you engaged in an act of sexual penetration with a juvenile;
  2. that the juvenile was either under 14 years of age – Penal Code 289(a)(1)(B) – or over 14 years of age – Penal Code 289(a)(1)(C); and
  3. that the act was accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.

 

Sexual penetration

In the Code, sexual penetration is defined as “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”[30]

 

Examples of ‘sexual penetration’ under this definition include using a medical instrument to penetrate a person’s anus, or using a finger to penetrate someone’s vagina.

 

The Prosecutor must prove that penetration occurred, and even the slightest penetration will satisfy the charge.

 

Age of the victim

Because there are two different offenses involving juveniles in this section of the Code, the Prosecutor must prove the age of the victim, in accordance with the charge that has been filed. If, for example, they file a charge under Penal Code section 289(a)(1)(B), but they cannot prove that the victim was under 14 years of age when the incident happened, then the charge will fail.

 

In the case of a charge where the alleged victim is under 14 years of age, the defendant’s knowledge of the age of the victim is irrelevant. However, for the offense where the victim is 14 or above, the defendant is entitled to raise a defense of mistake of fact  as to the victim’s age if they reasonably and actually believed that the other person was at least 18 years old. Keep in mind, however, that even if that defense was raised successfully, this offense still involves a further element that the penetration was accomplished against the victim’s will – so, a defense as to mistake of the victim’s age will probably not defeat all charges that an accused might be facing.

 

Use of force, violence, fear etc.

Both of the offenses under this section include an element that the act was accomplished against the victim’s will by use of force, violence, or fear – which means that the Prosecutor must prove that you used that to commit the offense. This could be by the use of physical force to restrain the victim, or by a threat that you would hurt the victim if they did not comply. In these offenses, fear can be achieved through duress, menace, or by putting the person is fear of immediate bodily harm to themselves or another person.

 

Is sexual penetration of a juvenile by force etc. a felony or a misdemeanor?

Both of the offenses involving juveniles under this section of the Code are treated as felonies. The penalties and consequences of conviction are very serious, including many years in state prison and lifetime registration. If you are charged with sexual penetration of a juvenile by force, you need a Summit Defense attorney to begin work immediately in building your defense, or to mitigate the seriousness of any penalty you may face.

 

How has Summit Defense successfully defended charges of sexual penetration of a juvenile by force etc.?

Our client was facing multiple charges of molesting his niece, including one count under Penal Code 289(a)(1)(B) of sexual penetration of a juvenile under 14, by use of force. His niece was 11 at the time of the alleged incident.

 

The girl had complained of several instances of molestation by our client, including one instance where she said that he came into her room one night when she was staying at his house, held a hand over her mouth to hold her down, and repeatedly inserted his penis into her anus. This was the most serious allegation against our client, and also the one that the girl said prompted her to tell her parents about the abuse.

 

In an interview with the police, our client had actually made admissions to several, much less serious, acts of exposing himself to the child, but was adamant that he had never touched her – and that he had not committed this offense of sexual penetration by force. In these kinds of cases, we know that the defense of our client needs to be approached carefully and with some sensitivity – but we also believe that no one should ever plead guilty or be convicted of an offense that they did not commit!

 

In this case, we took the prosecution’s medical evidence to an expert in these kinds of matters. At trial, our expert was able to explain to the jury that the lack of physical injury to the girl’s anus – even when she had been examined only a day or two after the incident – was extremely unlikely, especially given the details of what she had reported happening to her.

 

The outcome of this case was that our client entered guilty pleas in relation to two minor offenses – which we were able to keep from going before the jury – and he was acquitted at trial of the most serious charge of sexual penetration.

 

FLEEING TO ESCAPE PROSECUTION FOR A CHILD MOLESTATION OR CHILD SEX OFFENSE

What constitutes the offense of fleeing to escape prosecution or confinement for a child molestation or child sex offense in California?

Even if you have not committed an offense in this state, you can still be prosecuted if you flee to California to escape prosecution in another state. This is an offense under California Penal Code 289.5.

 

To prove this offense against you, the Prosecutor needs to establish the following elements beyond reasonable doubt:

 

  1. that you fled to California with the intent of avoiding prosecution or custody;
  2. that you are avoiding prosecution for one of the child molestation or sex offenses listed in the section;
  3. that you have been charged with, or convicted of, the offense under the laws of the jurisdiction from where you have fled; and
  4. that the prosecution has requested extradition, which was refused.

 

Fled to California with intent of avoiding prosecution or custody

For this element, the Prosecutor has to prove the mental state of the defendant. It is not enough for them to prove, for example, that you are present in California when you are facing charges in another state. They must prove that you have come to California with the specific intent of avoiding being prosecuted or confined for those offenses in the other state.

 

Are avoiding prosecution or confinement for a specific offense

The prosecution must prove that you are avoiding prosecution in relation to a specific set of offenses. There are many offenses that apply under this section, but generally speaking they are child sex or molestation offenses – such as lewd acts, sexual contact charges, and child pornography charges.

Even if the other jurisdiction does not have an offense in its Code that is exactly the same as the Californian one, it is enough for the Prosecutor to show that the offense charged in the other state would be able to be prosecuted in California.

 

Have been charged or convicted

The Prosecutor must prove that you have been either charged or convicted of the offense in the other jurisdiction. It is not enough to simply show that you are under investigation, or have been accused, of an offense in another state.

 

Requested extradition

It is obvious that each state should be responsible for prosecuting and imprisoning people that commit offenses in that jurisdiction. This means that, before someone can be convicted of this offense of fleeing another jurisdiction, the Prosecutor must ensure that they have already requested the other jurisdiction to extradite the defendant, and that the authorities in the other jurisdiction refused to do so.

 

Is fleeing to escape prosecution or confinement for a child molestation or child sex offense a felony or a misdemeanor?

Both of the offenses under this section of the Code are misdemeanors. Even misdemeanor charges, however, can result in a defendant serving time in jail – not to mention the consequence of having a criminal record for the rest of your life. The best way to avoid those kinds of serious consequences is to be represented by Summit Defense Attorneys.

 

In relation to this offense, it is important to note that being convicted of this charge does not do anything to ‘cancel out’ the charge or conviction in the other state – even if you were convicted of this offense, if you returned to the other state at any time, you could possibly still face prosecution or punishment there for the original offenses.

 

How has Summit Defense successfully defended charges of fleeing to escape prosecution or confinement for a child molestation or child sex offense?

Prosecutions under this section of the Code are relatively rare – that is because, in most cases, states are interested in extraditing accused people and people that are facing punishment in that state. However, we have dealt with these cases when they do arise.

 

In one such case, our client was arrested in California, based on the fact that he had been charged with and was on bail in relation to a child molestation offense in Arizona. He was in California to attend his mother’s birthday party, but he had extended his stay by several weeks, and  missed a court date in Arizona. His cousin, who had actually assisted with paying his bail, was angry with him and called the police, who laid charges.

 

When he contacted us, we got in touch with the Prosecutor straight away. We found out that the police had told the Prosecutor that they had alerted the authorities in Arizona, but that they had refused to take action. Instead of investigating that properly, however, the Prosecutor had taken the police officer’s word for it, and was going to proceed with the charge against our client. In fact, no formal request had been made to the authorities in Arizona. In the circumstances, we were able to arrange for the immediate release of our client and negotiate to avoid the Prosecutor filing charges, on an assurance that our client would return to Arizona the following week.

 

 

DEFENSES

At Summit Defense Attorneys, we believe in vigorously defending accusations of child molestation, and protecting clients from false allegations. We will get involved with your case early to try to avoid charges being filed altogether, and do what is necessary to build the best defense in your case.

 

Our attorneys know that every case and client is different, and that each requires an individual strategy and approach. We will take the time to evaluate your case thoroughly, make sure that you understand all of your options, and work to prepare your defense from the first day that you retain us. And even in cases where the evidence is overwhelming or you have made admissions, our attorneys know that the outcome of a case is never certain. Having an experienced Summit Defense attorney involved in your case can mean the difference between years in prison versus a more lenient, or even a non-custodial, penalty.

 

In this section, we will explain some of the more common defenses that are used in child molestation cases, and the circumstances in which they apply. If you are charged with a child molestation offense and want the best attorneys defending your case, you need to call Summit Defense Attorneys immediately.

 

It happened years and years ago! The Statute of Limitations

In almost all criminal matters, there is a clearly defined time limit within which charges must be filed. For example, in the case of petty theft, there is a limit of one year. And if that year passes without charges being filed then there is usually no way that a person could later be charged for that theft. The same time limit of one year applies for most misdemeanors, and for most felonies a limitation period of five years applies. Sex crimes, however – including child molestation offenses – are unique.

 

The Statute of Limitations in relation to sex crimes is complex, and it can be difficult to determine when the relevant time limit has expired. In some cases, the time limit is measured from the time of the offense, and in some circumstances, from when it was reported. This can depend on the age of the victim, when the matter was reported, and also the nature of the offense.

 

At Summit Defense Attorneys, we have had many cases where the prosecution tried to bring cases that were actually barred by the Statute of Limitations. Even if the accusation that you are facing is alleged to have happened many years ago, you still need a firm with expertise in this area to represent you – this is because, even if matter is barred by the Statute of Limitations, you can still be charged.

 

We have handled cases where our clients were arrested and charges filed against them before they got in contact with us – not only did they have to go through that process, but their reputations were needlessly damaged as a result. The sooner you contact us, the sooner we can work towards having you exonerated – our aim will always be to clear your good name and protect your reputation.

 

I didnt do it with any sexual intent!

Many child molestation offenses require proof that the act was done with some kind of sexual intent. This includes lewd act offenses, arranging a meeting with a minor for a lewd purpose, and the offense of distributing harmful material to a minor. Simple physical contact is not enough to prove this element, though, and even physical contact that might be considered inappropriate is not enough. But for adults who care for children in parental roles, as child-care workers, as teachers and coaches, or who are relatives, there are many occasions where there is physical contact with children – and this can be misconstrued.

 

Many acts can be completely innocent of sexual intent, depending on the circumstances surrounding the incident, and the state of mind of the accused.

 

For example, consider a man who is charged with committing a lewd act. Imagine that the evidence shows that he was bathing his 6 year-old daughter and her friend, also 6, who was staying over at their house for the night. While giving the girls a bath, he used a washcloth to clean them both – and in the process, he rubbed them both on the vaginal area. His daughter’s friend told her parents, and they reported the matter to the police. In this case, there is no evidence that the man was sexually aroused when bathing the girls, and there is no evidence that he did anything with the intent to either excite himself or the girls sexually. For that reason, a lack of sexual intent would be an effective defense to any lewd act charges filed against him.

 

Unfortunately, misunderstandings can arise, and there are cases where the evidence just does not prove beyond reasonable doubt that the accused acted with sexual intent.

But given the hysteria that often surrounds these kinds of accusations, cases where no sexual intent can be proved are often still pursued – needlessly subjecting people to the criminal process, and damaging their reputations. This is why you need to get Summit Defense Attorneys involved in your case as soon as possible.

 

I didnt do it – it was someone else!

Cases of mistaken identity and false identification happen in many criminal cases, and child sex offense cases are no different. Memories are notoriously unreliable and in the case of children – especially those who have suffered trauma – they are even more so. Add to this the fact that many child sex allegations arise years after the alleged incident, and there are a many cases where an innocent person is wrongly accused.

 

In child sex or molestation cases, there are many reasons why the wrong person might be named as the offender. It could be due to the improper and overly suggestive techniques of an interviewer or it could be because of a suggestion that some other adult has made to the child. This is because children are eager to please and often intimidated by the criminal process, and there can be a tendency for them agree with questions put to them, or to say what they think the person questioning them wants to hear – especially when they don’t fully understand the consequences of what they are saying. This is sometimes referred to as the ‘misinformation effect’.

 

In extreme cases, when incorrect suggestions are made to children about who was responsible for their abuse, it can lead to the creation of a false memory. Studies have shown that it is possible to ‘create’ false memories – something as simple as friends or family suggesting that something happened when the person was a child is enough make that person believe that it is true, and for them to actually create a memory of the incident.

 

Take a twelve-year-old girl who is repeatedly asked by her father whether her mother’s live-in boyfriend ‘touched’ her. After a while, the girl senses that her father would be pleased if she agreed and said ‘yes’, so she eventually agrees with him. In that kind of situation, it is easy to imagine the girl’s father asking her more questions – ‘did he touch you on your underwear?’, ‘did he make you touch him on his privates?’ – and the girl continuing to agree with his suggestions, even if she feels embarrassed, or trapped by her initial lie.

 

A case like that could easily spiral out of control, with the father taking the matter to police, and the girl feeling like she has to keep going with the lie to please her father. The girl is interviewed several times, and the story keeps growing. After a while, it is possible that the girl could  begin to believe that her mother’s boyfriend abused her – even if it never happened at all! Unfortunately, that is how our memories can work sometimes – and that could have tragic consequences for you if you are caught up in a false accusation without a Summit Defense attorney on your side.

 

Another reason why a child might identify the wrong offender has to do with the effect of stress or trauma on memory. There is still a lot that scientists and mental health experts do not know about the different kinds of memories that humans have, but several facts are relevant for consideration in sex crime matters. The first is that stress does effect memory, but that it effects different kinds of memory in different ways. For example, a stressful or traumatic event is very likely to be stored in someone’s long-term memory. However, the other effect of stress on long-term memory is that being in a stressful situation after the experience makes it harder to recall specific details about the experience. This is very relevant when we consider how stressful many children would find it to talk to strangers about their experiences, and  to give evidence in court.

 

Another important fact relates to how stress effects a person’s ability to remember episodes and specific events that happened to them – what is known as autobiographical memory. Research has shown that stress can impair the accuracy of these kinds of memories, but not how often the memories occur, or how confident someone feels about the accuracy of their memory. This provides an explanation for the fact that, sometimes, people who remember traumatic events in their lives are so insistent that their memories are correct – even when they might later be shown to be wrong.

 

Further, the more times that someone is asked to recall an autobiographical memory, the less accurate it can become – and that is  more pronounced when the person is anxious. Also, if the memory or the experience of recalling it continues to cause the person stress, their memory will be susceptible to lots of other negative influences – such as suggestions from other people, or their current emotional state.

 

What all of this information demonstrates is that while a person might very accurately remember being molested, their recall of the exact details of the incident – when it happened, who did it, where it happened – might be impaired. Those memories are likely to become even more inaccurate over time, and as the person experiences the stress of having to recall the incident, the stress of questioning and pressure to talk about it from family members or therapists, and the stress of the criminal investigative process.

 

The attorneys at Summit Defense know how unreliable memory can be, and how the criminal process can negatively affect the memories of people who have suffered trauma. We are always alert to the issues of mistaken identity or false memory in a case, and we will immediately retain the services of an expert psychologist who specializes in interviewing children, false memories, and suggestive interviews, to build our client’s defense.

 

There is not enough evidence to prove the charge!

The prosecution must prove every element of a criminal charge beyond reasonable doubt. A lack of evidence, or a lack of evidence strong enough to support a charge beyond reasonable doubt, is one of the most common defenses relied upon, including in child molestation cases. If the evidence that the Prosecutor is relying upon in your case is not adequate, you need an expert lawyer from Summit Defense Attorneys on your side to challenge the prosecution case and make sure that you are not unjustly convicted.

 

An expert Summit Defense attorney will know how to raise reasonable doubt in your case. For example, many cases come down to the word of the alleged victim against the word of the accused. Consider a case where a woman claims that, when she was a child, she was sexually abused by a man that her parents were friends with. She raises the allegations many years later, but she never told anyone about the alleged incidents at the time. The accused person does not say anything to the police.

 

Obviously, in that kind of case, there will be no physical evidence, and no other witnesses that would be able to corroborate the woman’s version of events. But we know it’s not enough to simply point that out to the Prosecutor or jury – we will investigate this kind of case thoroughly, and that includes investigating the accuser and their history so we can attack their credibility if the matter goes to trial. Some things that we can do when investigating the accuser’s credibility include:

  • subpoenaing school, counseling, or medical records, where relevant;
  • subpoenaing email, Facebook, and other social network accounts;
  • interview the accuser’s friends, family, partner, colleagues, and anyone else they might have regular contact with; and
  • have the accuser’s background thoroughly checked.

 

Unfortunately, a lack of evidence does not always stop the authorities from pursuing charges against someone. Our attorneys are ex-police officers and ex-District Attorneys, and this experience on the other side means that we know how common it is for charges to be filed where evidence is weak, or where the case is only built on the word of the alleged victim against the word of the accused. Our experience also means that we know exactly how to dismantle those kinds of cases, and we have an excellent record of having charges withdrawn and winning trials in child molestation cases in the Bay Area  – making Summit Defense Attorneys the right firm to fight your case.

 

I didnt know that the person was a child!

There are several child molestation offenses that rely on proof not only that the victim was a particular age, but also that the offender knew that the other person was that particular age, or was a juvenile. These include the offenses of sodomy with a juvenile (over 14), sending harmful material to a minor, communicating with a minor with intent to commit a felony, arranging a meeting with a minor for a lewd purpose, and oral copulation and sexual penetration offenses where the alleged victim is over 14.

 

There are often incidents where someone is not always able to tell that the person they are talking to or meeting is a child of a particular age. The two most common examples are when the parties engage in online communication, and when a juvenile looks much older than they actually are – either because they are particularly developed, because they do things to make themselves look older, or because they are engaging in adult activities, such as drinking alcohol.

 

This kind of defense is known as a ‘mistake of fact’. If a defendant raises this defense at trial, the jury will be told the following:

 

“ The defendant is not guilty of this crime if he or she reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.”[31]

 

As you can see, once this defense is raised, it is then the prosecution’s job to defeat it.

 

In a case that a Summit Defense attorney handled, our client was a 22-year-old man charged with several offenses allegedly committed against a 16-year-old girl. These included sodomy, sexual penetration, and oral copulation charges. The incident occurred on a weekday, at around lunchtime, when our client was at the beach with two friends. They met the girl and her friend, and they all hung out together for a while. The girl and her friend were drinking beers that they had bought to the beach with them, and they shared some with our client and his friends. After some time, our client and the girl went off alone, to a public toilet block, where they engaged in several consensual, sexual acts. The two then rejoined the group, and when all of the beers were finished, the guys and the girls went their separate ways.

 

The girl’s statement to the police revealed that she later got upset about the sexual encounter with our client, and told her friend about it. Her friend urged her to tell her parents, who insisted on taking the matter to the police.

 

When our client contacted us, he was devastated by the allegations. He told us that he didn’t know that the girl was under 18. In fact, he had specifically asked her if she was “old enough” when they went to the toilet block together. Further, our client said that the girl had been wearing makeup, was not at school on a school day, had been wearing jeans and a tank top, had fully developed breasts and pubic hair, and had been drinking alcohol.

 

We reassured our client that he had a legitimate defense to the charges. All of the factors combined meant that it was more than reasonable for our client to believe that the girl was at least 18. In that case, however, the Prosecutor was initially determined to proceed with the matter. They had a photo, given to them by the girl’s parents, that showed her in her school uniform and without makeup – and where she certainly did look much closer to her age of 16. However, we were able to obtain photos of the girl from her Facebook account that demonstrated more closely how she looked on the day that our client met her – and that evidence, combined with admissions from the girl that she had been drinking and not at school, were enough to convince the Prosecutor to drop the charges.

 

For many offenses, the law recognizes that it would be unfair to convict a person of an offense if they did not know the age of the other person, or if they were somehow misled or deceived about the age of the victim. But that does not mean that such a defense is easy to raise, or that it is easy to convince a Prosecutor or a jury of the merits of the defense. To raise the defense of mistake of age, you need a Summit Defense attorney who knows how to build this defense successfully.

 

*STEVE WANTS A PHOTO OF THE SAME GIRL HERE, LOOKING OLDER AND YOUNGER, AS AN EXAMPLE OF HOW THIS DEFENSE CAN BE EFFECTIVE.

 

The allegations are false!

False allegations are not uncommon in child molestation cases. Summit Defense attorneys know from experience what scientific studies have shown to be true – that children do lie, and that innocent people have been falsely accused and wrongly convicted as a result. A false allegation can have tragic consequences for the accused, including:

 

  • years in jail or state prison;
  • lifetime registration as a sex offender; and
  • permanent damage to your reputation, and career and family life too.

 

In short, a false allegation of molesting a child can ruin your life. That is why you need the right attorney – if you have been falsely accused of a child molestation offense, you need to call Summit Defense Attorneys immediately. We won’t wait until charges are filed before starting work on your case, and exposing the false allegations for what they are.

 

Here are some important facts on false allegations of child abuse:

 

  • Of the nearly 3 million allegations of abuse or neglect that were made to Child Protective Services in 2010, one-fifth of the claims met the legal requirements of abuse. In the other four-fifths of the claims, the investigation determined that there was not sufficient evidence under state law to conclude or suspect that the child was maltreated or at-risk of being maltreated.
  • An estimated 2-10% of all child abuse claims are believed to be false. Using a conservative 5% false allegation figure, nearly 150,000 children are involved in a false child abuse claim each year.
  • During child-custody disputes, false allegation rates as high as 36-55% have been reported.[32]

 

There are not separate statistics available that separate out child molestation allegations, but they are included in the above data. There is a difference in results across studies because they vary widely in their methodology and in what they measure, but what cannot be disputed is that false allegations do occur – and in thousands of cases.

 

There are a number of common reasons why a false allegation might arise, such as:

  • an improper or flawed investigation;
  • ulterior motive on behalf of the child, or other accuser; and
  • false memories.

 

Improper or flawed investigations

As we discussed while outlining the process of child molestation investigations , police and child protective services staff have a tendency to accept a child’s word when an accusation is made. In fact, investigations often proceed in a way that solely targets the person that the child has identified, as opposed to critically examining the truth behind what the child is saying.

 

A major problem with some investigations is the techniques used during an interview with a child. An investigator should be objective, and let the child tell them what happened. But what often happens is the opposite – the interviewer makes suggestions to the child, asks leading questions, or keeps repeating questions until they get the answer that they want. This can lead to a child lying to agreeing with the interviewer, or lying so that they can say what they think that person wants to hear – which can, obviously, lead to false allegations.

 

One of the most notorious examples of false child molestation allegations is a Californian case from the 1980’s, known as the McMartin Preschool case. In the case, a mother of one of the Preschool’s students made a complaint to police that her son had been sodomized by one of the employees, who was also her estranged husband. The investigation quickly spiraled out of control, with investigators questioning hundreds of children. The police built a case against several defendants, with hundreds of charges filed against them, based on false allegations and incorrect medical evidence.

 

One of the most damning aspects of the McMartin case was the way children were interviewed. Recordings of the interviews showed that they were led by the adult, and that they were often fed information and repeatedly questioned about something until the interviewer got the answer they wanted. A child who gave evidence against the defendants was later reported in the Los Angeles Times Magazine to say, as an adult:

 

“Never did anyone do anything to me, and I never saw them doing anything. I said a lot of things that didn’t happen. I lied. … Anytime I would give them an answer that they didn’t like, they would ask again and encourage me to give them the answer they were looking for. … I felt uncomfortable and a little ashamed that         I was being dishonest. But at the same time, being the type of person I was, whatever my parents wanted me to do, I would do.”[33]

 

This case demonstrates how quickly false allegations of child abuse can get out of hand – and how easily such allegations can be fueled by incorrect and biased interview techniques. Summit Defense Attorneys are experts at recognizing this kind of bias in an investigation and discrediting the evidence – and we vigorously defend charges based on these kinds of unacceptable and flawed techniques.

 

Ulterior motives

Everyone knows the stigma that surrounds an allegation of child molestation. Unfortunately, some people are determined to take advantage of that, and will use an allegation as a weapon against someone else. This occurs frequently in cases of family conflict, or where a child is unhappy with the presence of a particular person in their life – such as a step-parent, a babysitter, or someone that their parent is having a new relationship with.

 

Research also shows that it is common for people to make so-called “unintentional” false allegations – again, especially in the context of family conflict or separation.[34] This can happen where there are “misinterpretations of ambiguous physical contact between child and spouse”[35]. But even if a parent or relative is acting out of a sincere desire to protect the child, their allegations can place an accused person in grave danger of losing not only access to their children, but also their livelihood and also their liberty.

 

Because the authorities take child molestation allegations so seriously, a person facing such an allegation cannot afford to take it lightly either. Even if an allegation is raised in the course of a family dispute, do not make the mistake of thinking that you can sort it out yourself.

 

The experience of one of Summit Defense’s clients shows just how risky it is to not take these kinds of allegations seriously. Our client was involved in a bitter divorce and child-custody battle with his wife. In one of the documents that she filed with the court, she made an allegation that our client had touched two of the children inappropriately during an access visit . Even though the allegation was completely unsubstantiated by any other evidence or witnesses, his wife was able to use the allegation to stop her husband seeing the children. When that happened, though, the husband thought that he could sort it out with his wife. He tried to go to her house to see her to talk about it, but she would not speak to him – and used that visit by him to the house to make a report to child protective services saying that he had threatened her and the children.

 

This meant that an investigation was started, and our client faced questioning by child protective services. He tried to explain the matter to them, but the investigation continued. It was only when he was approached by the police for questioning that he contacted us.

 

Fortunately, we were able to speak to the police, inform them of his wife’s behavior, and ensure that charges were not filed against him – no doubt, if we had not been called upon to intervene when we were, our client would not have been so lucky. This is why you cannot afford to stand by and wait to see what happens when allegations are made against you – even if you know that they are false. You need to call Summit Defense Attorneys as soon as any accusation is made so we can intervene immediately, and help to protect you, your freedom, and your good name.

 

False memories

We have already discussed how unreliable and malleable memory can be, to the extent that false memories can lead to the wrong person being identified and accused of child molestation offenses. However, it is also the case that false memories can be responsible for an innocent person being accused of child molestation – even when no abuse happened, at all!

 

It is true that some controversy surrounds the idea that people can have false memories ‘implanted’ in their mind when, for example, undergoing psychological therapy. But the real controversy surrounds whether a therapist would intentionally – and quite maliciously – do this to someone. Regardless of that controversy, though, what cannot be disputed is that false memories can be created by suggestion, and that there have been cases where this has occurred.

 

False memories are most commonly created in situations where a person is repeatedly asked or told about something by someone that they trust – such as a parent, or a therapist or counselor – or are frequently exposed to an idea or suggestion. It might not be that person’s intention, but the way in which our memories work is very complex, and the mere suggestion that something happened can be enough to trigger this phenomenon.

 

In child sex or molestation cases, it could be that a person is dealing with some other, current trauma or stress, and is searching for an explanation in their past. A simple question about whether they suffered abuse as a child could be enough to, in effect, plant that idea in their mind. And, with the kind of high-profile publicity that child abuse allegations receive in the media, there is certainly a kind of reinforcement that exists in the wider world if someone starts to consider whether this kind of thing ‘really did’ happen to them. Further, a child abuse ‘victim’ receives a lot of sympathy – which can further reinforce that person’s false memory.

 

We know that false memories can be created – and that they can have tragic consequences for a person who is accused as a result. Fighting a case where false accusations are made against you requires nothing less than the best attorneys and experts in the area – which is why you need to have a Summit Defense attorney on your side.

 

I did something wrong, and I admitted it, can Summit Defense still help me?

Yes, we can. An attorney from Summit Defense can make a lot of difference in your case, even if you are guilty of some kind of wrongdoing and have confessed to the police.

 

One of the most important reasons why you need one of our attorneys on your side, even if you did do something wrong, is because of the dramatic difference we will make to the outcome in your case. Child molestation cases can result in wildly different outcomes – depending on the facts of a case and the charges filed, and because there are a wide range of penalties available.

 

One of our recent cases shows how the work of our attorney was able to dramatically influence the outcome of the case, and keep his client out of jail. Initially, our client, who was an alcoholic, was facing a charge of felony child molestation, as well as a charge of misdemeanor sexual battery. The maximum penalty for the offenses was nine years in state prison, and the Prosecutor offered a plea deal of three years. With a client facing those kinds of charges, a lot of attorneys would encourage their clients to take the deal. However, our attorney was determined to try to get an even better result for his client.

 

We conducted an investigation into the case, including conducting a background check on the victim, and continued negotiations with the Prosecutor about what facts could be proved in the case, and which would have to be excluded. In the end, we were able to obtain a plea for our client that resulted in him spending no time in jail but, rather, 90 days in a residential drug and alcohol treatment program. The charges that he eventually pleaded to were non-registrable offenses, which means that he avoided the life-long stigma of being registered as a sex offender.

 

The outcome of a child molestation case is never be pre-determined, or set in stone – and a Summit Defense attorney will make a real difference to your case, and the penalty that you end up receiving. You do not need a Summit Defense lawyer just because you want to defend a case – you need a Summit Defense lawyer to fight for you, in any case.

 

 

PENALTIES

The penalties imposed for child molestation offenses in California can be very serious. However, they do vary depending on the circumstances and the seriousness of the crime. There are many important factors that an experienced attorney will put before the court in order to mitigate the sentence imposed. There are ways of avoiding an overly harsh penalty, if you have a Summit Defense attorney representing you.

 

To put your best case forward, you should have an experienced attorney who is able to advise you and plan your strategy right from the start of your case through until the end. Early intervention is key, and at Summit Defense Attorneys, our ultimate goal is always the complete dismissal of charges against you. Even if dismissal is not possible, as the most experienced sex crime defense attorneys in the Bay Area, we will be able to help you achieve the most lenient penalty for your case.

 

In the sections below, we will discuss the various factors taken into account in sentencing for child molestation offenses, and also outline the penalties applicable for each offense and whether registration as a sex offender is required following conviction. This is a complex area – if you wish to discuss your case, and ways in which we can help to limit your exposure to these severe penalties, call Summit Defense Attorneys today.

 

What factors will the judge take into account when sentencing me?

Apart from the nature of the offense itself and any criminal history, in all cases the judge will consider the specific circumstances of each case before passing sentence. Some of the things that the judge will consider are known as aggravating and mitigating circumstances  – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.

 

There are some common factors that can occur in child molestation cases – for example, if you voluntarily enter into a treatment program, then that would be taken into account as a mitigating circumstance. On the other hand, if some additional injury was caused when the offense was committed, that might be considered an aggravating circumstance. However, every case is different and every defendant is unique – an experienced Summit Defense attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.

 

In the case of child molestation matters, it is relevant to note that many offenses will be charged with an aggravating factor included in the offense itself. When this occurs, a more severe maximum penalty applies. For example, for the charge of committing a lewd act with a child under Penal Code Section 288(a), the maximum penalty is between three and eight years in a state prison. However, if a defendant is charged under subsection (b)(1) of Penal Code Section 288, the Prosecution are alleging that the lewd act was committed by the use of force, violence, duress, menace, or fear of injury, and the maximum penalty is between five and ten years in a state prison.[36] What this means when sentencing occurs is that the court cannot count that aggravating factor twice – if the factor is mentioned in the charge itself, then the offense is already considered to be more serious, and the same facts cannot be used again to make a sentence doubly severe.

 

Another major factor that will affect a final sentence are the number of charges filed. It is common for multiple counts to be filed against a single defendant in child molestation cases. This can occur when a defendant has committed an offense on several different occasions, but also when there is only a single instance of offending behavior. For example, if in one event a defendant touches a boy on his genital area over his clothing, and then takes his clothing off and touches him again, and then puts his mouth on the boy’s penis, this could be charged as at least three separate offenses. And, with three counts, the sentence would likely be more severe than if there was only a single charge filed. However, there are ways in which your Summit Defense attorney can advocate for a sentence to be structured that can help to minimize the negative effect of being charged with multiple counts.

 

Overall, sentencing for child molestation offenses can become quite complicated – there are many different factors for the judge to take into account, and this means many different factors for an experienced attorney to argue. If you might be facing sentencing for child molestation offenses, contact one of the expert attorneys at Summit Defense to ensure that you are able to put forward the best case possible in your sentencing.

 

Ive made efforts to address my behavior since being charged – will that make a difference?

Yes, it will. One of the most useful things that a defendant facing sentence can do is to take steps to address their offending behavior before the court finally passes sentence. This can be an effective way of showing the judge that you recognize your wrong-doing, are trying to make amends, and are taking action to make sure that it doesn’t happen again. One of the main things that any sentencing judge will be concerned about is whether or not you are likely to re-offend. By undergoing treatment or making other efforts to acknowledge and deal with the root causes of your offending behavior, you will be able to argue that you are actually unlikely to reoffend.

 

The way in which this kind of acknowledgement can assist your case is demonstrated in a recent case that we handled.  In that matter, our client was accused of having sex with a juvenile. Our attorney’s efforts at negotiation, as well as the fact that our client voluntarily underwent a psychiatric evaluation and entered into counseling, helped to sway both the Prosecutor and the judge to treat him more leniently. First of all, the Prosecutor agreed to file a lesser charge against our client. When our client entered a guilty plea to that lesser charge, the matter was referred to probation, where the recommendation was for 180 days in custody. Again, the combination of our attorney’s efforts and our client’s participation in counseling meant that we were able to successfully argue that he should be able to apply for alternative sentencing.

 

The outcome of this case was success on several fronts – the judge agreed that our client was not a sexual predator, and that he was not required to register as a sex offender. Further, he was able to serve the entirety of his sentence out of jail and by way of the Electronic Monitoring Program.

 

If you’d like to discuss your case, and how we can also help you take action to achieve the best outcome, call Summit Defense Attorneys for a consultation today.

 

I have a history of sexual abuse myself – will the court take that into account?

Yes, it will. When sentencing, the judge will take into account any individual characteristics of the defendant that are relevant. In cases where the defendant themselves has been sexually abused in the past, that could be relevant when considering both why they committed the present offense, and also what their prospects might be for rehabilitation or re-offending. A Summit Defense attorney will frame this kind of matter with sensitivity; help explain to the judge how previous experience of sexual abuse affected the defendant, and why that should be considered in reducing the defendant’s sentence.

 

If you have been accused of a child molestation offense, but were actually abused as a child yourself, it is important to realize that you are not alone – and that kind of history may actually be a very compelling explanation for your behavior. In fact, studies have shown that there is a higher prevalence of sexual abuse history among sex offenders, and an even higher correlation between suffering sexual abuse as a child and later committing sex offenses against children.[37]

 

In a recent high-profile case, a US Senate aide committed suicide after being charged with child pornography offenses. While that case had a tragic outcome, he left behind a note which provided some insight into his behavior – he explained that he had been sexually abused as a child from the age of five, and that he had never received treatment or counseling in relation to that abuse.

 

At Summit Defense Attorneys, we believe that offenders who suffered abuse as children deserve understanding, and that treatment should be prioritized over punishment. We help clients in this position to access the best treatment and care, and also protect their interests in court. We will urge the court to treat our client with compassion and with the acknowledgement that continued treatment would benefit both the defendant and the community more than severe punishment.

 

Will I have to register as a sex offender?

You may have to register as a sex offender, depending on the charges that you are convicted of. At Summit Defense Attorneys, we recognize how debilitating lifetime registration is, and will do everything possible to help you avoid having to register as a sex offender.

 

Sex offender registration has been around for decades, however, it is only in more recent times that the information of offenders was made available to the public via the internet.  In California, a law known as ‘Megan’s Law’ dictates that certain information about registered sex offenders must be posted on the internet, on what is known as Megan’s List. This online listing will usually record a person’s name, the details of their offense and sentence, and where they live.

 

We have set out the registration requirements for the full range of child molestation offenses in a table, below . If you are facing child molestation accusations and potential registration, you should get the help of an attorney who is experienced in the area. And if you are convicted of a sex offense and required to register, you should be fully aware of your obligations – and also of the fact that the law does prevent other people from harassing you. We provide more information on sex offender registration here .

 

 

 

What are the penalties for child molestation offenses?

 

Penal Code Section + Offense Misdemeanor, Felony, or Wobbler?  Maximum Penalty Range (for each count) Registration Required?
Section 286(b)(1) – sodomy with person under 18. Wobbler. Misdemeanor – one year in country jail.

Felony – 16 months to 3 years in state prison.

Yes.
Section 286(b)(2) – sodomy by a person over 21 with a person under 16. Felony. 16 months to 3 years in state prison. Yes.
Section 286(c)(1) – sodomy with a person under 14 by a person more than 14 years older. Felony. 3 to 8 years in state prison.

 

Yes.
Section 286(c)(2)(B) – sodomy with a person under 14 by force, violence, duress, menace, or fear of bodily injury. Felony. 9 to 13 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 286(c)(2)(C) – sodomy with a minor above 14 by force, violence, duress, menace, or fear of bodily injury. Felony. 7 to 11 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 286(d)(2) – sodomy with a person under 14, in company, by force, violence, duress, menace, or fear of bodily injury. Felony. 10 to 14 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 286(d)(3) – sodomy with a minor above 14, in company, by force, violence, duress, menace, or fear of bodily injury. Felony. 7 to 11 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288(a) – lewd act on child under 14. Felony. 3 to 8 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288(b)(1) – lewd act on a child under 14, by force, violence, duress, menace, or fear of bodily injury. Felony. 5 to 10 years in state prison.

 

A strike under the ‘Three Strikes Law.’

Yes.
Section 288.5(a) – continuous sexual abuse of a child under 14 (lewd acts). Felony. 6 to 16 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288(b)(2) – lewd act on a child under 14, who is a dependent person, by a caretaker, by force, violence, duress, menace, or fear of bodily injury. Felony. 5 to 10 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288(c)(1) – lewd act on child of 14 or 15, by a person at least 10 years older. Wobbler. Misdemeanor – one year in country jail.

 

Felony – 1 to 3 years in state prison.

Yes.
Section 288(c)(2) – lewd act upon a dependent person. Wobbler. Misdemeanor – one year in county jail.

 

Felony – 1 to 3 years in state prison.

Yes.
Section 288(i)(1) – lewd act upon child under 14, inflicts bodily harm upon the victim. Felony. Life in a state prison, with the possibility of parole.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288.2(a)(1) – distribute, send, or exhibit material depicting minor/s engaged in sexual conduct to a minor. Wobbler. Misdemeanor – one year in country jail.

 

Felony – 2 to 5 years in state prison.

Yes -only if felony conviction.
Section 288.2(a)(2) – distribute, send, or exhibit harmful material to a minor. Wobbler. Misdemeanor – one year in county jail.

 

Felony – 16 months to 3 years in state prison.

Yes – only if felony conviction.
Section 288.3(a) – contact or communicate with a minor, or attempt to, with intent to commit a felony. Felony. Equivalent to the offense there was the intent to commit.

 

Second or subsequent offense Section 288.3(c) – additional and consecutive 5 years in state prison.

Yes.
Section 288.4(a)(1) – arrange meeting with a minor for lewd purpose. Misdemeanor.

 

If a previous s.290 offense – felony.

Misdemeanor – fine of $5,000; one year in county jail.

 

Felony – 16 months to 3 years in state prison.

Yes.
Section 288.4(2)(b) – arrange meeting with minor for lewd purpose, and attend meeting place. Felony. 2 to 4 years in state prison. Yes.
Section 288.5 – continuous sexual abuse of a child under 14. Felony. 6 to 16 years in state prison.

A strike under the ‘Three Strikes Law’.

Yes.
Section 288.7(a) – sexual intercourse or sodomy with a child 10 or younger, by a person 18 or older. Felony. 25 years to life in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288.7(b) – oral copulation or sexual penetration with a child 10 or younger, by a person 18 or older. Felony. 15 years to life in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288a.(b)(1) – oral copulation with a person under 18. Wobbler. Misdemeanor – one year in county jail.

 

Felony – 16 months to 3 years in state prison.

Yes.
Section 288a.(b)(2) – oral copulation with a person under 16, by a person over 21. Felony. 16 months to 3 years in state prison. Yes.
Section 288a.(c)(1) – oral copulation with a person under 14, by a person more than 10 years older. Felony. 3 to 8 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288a.(c)(2)(B) – oral copulation with a person under 14, by force, violence, duress, menace, or fear of bodily injury. Felony. 8 to 12 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288a.(c)(2)(C) – oral copulation with a minor over 14, by force, violence, duress, menace, or fear of bodily injury. Felony. 6 to 10 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288a.(d)(2) – oral copulation with a person under 14, in company, by force, violence, duress, menace, or fear of bodily injury. Felony. 10 to 14 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 288a.(d)(3) – oral copulation with a minor over 14, in company, by force, violence, duress, menace, or fear of bodily injury. Felony. 8 to 12 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 289(a)(1)(B) – sexual penetration of a child under 14, by force, violence, duress, menace, or fear of bodily injury. Felony. 8 to 12 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 289(a)(1)(C) – sexual penetration of a minor over 14, by force, violence, duress, menace, or fear of bodily injury. Felony. 6 to 10 years in state prison.

 

A strike under the ‘Three Strikes Law’.

Yes.
Section 289.5(a) – fleeing to California to avoid prosecution for a charged offense equivalent to a s.290 offense. Misdemeanor. One year in county jail. No.
Section 289.5(b) – fleeing to California to avoid custody or confinement for a conviction equivalent to a s.290 offense. Misdemeanor. One year in county jail. No.

 

 

[1] Child Welfare Information Gateway. (2012). Mandatory reporters of child abuse and neglect. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau.

[2] Child Welfare Information Gateway. (2012). Mandatory reporters of child abuse and neglect. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau.

California Penal Code Sections 11166 and 11165.7.

[3] Wikipedia ‘McMartin Preschool Trial’, accessed at http://en.wikipedia.org/wiki/McMartin_preschool_trial#cite_note-apology-16

[4] California Penal Code Section 265.1(a).

[5] People v. Sharp (1994) 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117

[6] People v. Sharp (1994) 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117 – “[E]ven a seemingly innocent act, such as stroking a child’s hair or rubbing her back, can be found to be ‘lewd or lascivious’ when viewed in the totality of the circumstances in which it occurred… [A]ny touching of any part of the body of a child under the age of 14 can be ‘a lewd or lascivious act’ within the meaning of section 288 if, in the totality of the circumstances in which it occurred, including any secretive or predatory conduct by the defendant, a reasonable person could conclude it was sexual in nature.”

[7] People v. Olsen (1984) 36 Cal.3d 638, 647.

[8] California Penal Code Section 288(f)(1).

[9] California Penal Code Section 288(f)(3).

[10] California Penal Code Section 288(i)(3).

[11] California Penal Code Section 288.2(a)(1).

[12] Judicial Council of California Criminal Jury Instructions, Instruction 1140.

[13] People v. Dyke (2009) 172 Cal.App.4th 1377.

[14] California Penal Code Section 288.2(g).

[15] Judicial Council of California Criminal Jury Instructions, Instruction 1140.

[16] People v. Jensen (2003) 114 Cal.App.4th 224.

[17] California Penal Code Section 288.3(b).

[18] Judicial Council of California Criminal Jury Instructions, Instruction 1125.

[19] That is, offenses listed in California Penal Code Section 290(c).

[20] California Penal Code Section 288.4(2)(b).

[21] People v. Rodriguez (2002) 122 Cal.Rptr.2d 348, 28 Cal.4th 543

[22] As explained in People v. Johnson (App. 2 Dist. 1995) 46 Cal.Rptr.2d 838.

[23] Judicial Council of California Criminal Jury Instructions, Instruction 1120.

[24] California Penal Code Section 286.

[25] California Penal Code Section 288a.

[26] California Penal Code Section 289(k)(1).

[27] California Penal Code Section 288.7(b).

[28] California Penal Code Section 288.7(a).

[29] California Penal Code Section 288a(a).

[30] California Penal Code Section 289(k)(1).

[31] Judicial Council of California Criminal Jury Instructions, Instruction 1081.

[32] Statistics taken from ‘Falsely Accused of Child Abuse’, accessed at: http://www.saveservices.org/falsely-accused/child-abuse/

[33] Wikipedia ‘McMartin Preschool Trial’, accessed at http://en.wikipedia.org/wiki/McMartin_preschool_trial#cite_note-apology-16

[34] Arthur H. Green, ‘Factors Contributing to False Allegations of Child Sexual Abuse in Custody Disputes’, 15(1991)2 Child & Youth Services, 177.

[35]Arthur H. Green, ‘Factors Contributing to False Allegations of Child Sexual Abuse in Custody Disputes’, 15(1991)2 Child & Youth Services, 177.

[36] California Penal Code Section 288(b)(1).

[37] See, for example, Ashley F. Jespersen, Martin L. Lalumière, and Michael C. Seto, “Sexual Abuse History Among Adult Sex Offenders and Non-Sex Offenders: A Meta-Analysis”, Child Abuse and Neglect: The International Journal, (2009), Vol. 33, No. 3, p.179-192. Available via http://library.childwelfare.gov/cwig/ws/library/docs/gateway/Record?rpp=10&upp=0&m=1&w=+NATIVE%28%27recno=66795%27%29&r=1
[38] The note is posted online at  http://www.jesseryanloskarnslastmessage.com/333880300