Lew or Lascivious Act on a Child - Child Molestation
A very disturbing criminal act to most is what is popularly called child molestation. This crime is described in section 288(a) of the California Penal Code and is committed when there is touching between an adult and a child 14 years of age or younger, regardless of the gender, for the purpose of sexual gratification of either party. The touching can be accomplished by either the child or the adult however it must be instigated by the adult. Consent is not a defense. A good faith belief or a reasonable mistake as to age is also not a defense. The fact that a child is under 14 is an element of the offense and must be proved, however it may be proved by circumstantial evidence such as the appearance of the child witness at trial. The crime becomes more serious with enhanced penalties when either force, fear, or intimidation are used. The force used must be substantially different from, or greater than that necessary to accomplish the act.1
If the necessary intent is established a violation of section 288 is committed by any touching, or feeling of a part of the child’s body. The fact that the touching occurs through clothing is not important where the necessary sexual intent is present. The touching can be a series of acts, or continuous conduct, in either case it is sufficient as long as there is a sexual intent. However, minimal touching as in the case of placing an arm around a child’s shoulder while outdoors during daylight is alone not a sufficient touching.
Where a killing occurs during the commission of an act or serious of acts that constitute child molestation the so-called felony murder rule applies and the crime becomes first degree murder. The felony murder rule is a legal construct that holds that if a killing occurs, even if unintentional, during the course of an inherently dangerous felony which includes child molestation, it is considered first degree murder.2 Where the death is caused by the commission of a premeditated murder during the course of a violation of section 288 it is consider a special circumstance and subjects the perpetrator to the death penalty.3
A person is not eligible for probation if convicted of child molestation unless a psychiatric report is submitted to the court under section 288.1 concerning the person’s mental condition.
Each act of touching with the requisite sexual intent constitutes a separate offense.
A person who resides in the same home as a child or who has continuing access to a child and who over the period of at least three months engages in three or more acts defined by section 288 is guilty of continuous sexual abuse of a child.4
1 Section 288(b) of the California Penal Code
2 Section 189 of the California Penal Code
3 Section 190.2 of the California Penal Code
4 Section 288.5(a) of the California Penal Code
5 Section 266j of the California Penal Code