Vista & San Diego CHILD MOLESTATION LAWYER

About Child Molestation Charges in San Diego County

Child molestation is one of the most stigmatizing criminal offenses.¹ Although everyone is familiar with the term, few people actually understand what the crime entails. If you have been accused of any type of sexual assault against a child, contact a criminal defense lawyer as soon as possible because attempting to defend yourself could result in your saying something that could be used as a confession.

Child Molestation Charges: Penal Code 288 (PC)

The most commonly filed child molestation charges in San Diego, California involve someone being accused of inappropriately touching a young minor. These charges generally fall under Penal Code 288 (PC); however, the specific allegations may fall under one of two subsections.²

Regardless of the subsection, the lewd acts do not have to involve inherently sexual acts, but at least one person involved must have been seeking sexual pleasure from the activity.

Lewd and Lascivious Acts With a Child Under the Age of 14

What most people call “child molestation” is most commonly charged as lewd and lascivious acts with a child under the age of 14 under Penal Code 288(a) (PC) of California law.

Sexual Acts Against a Minor Aged 14 or 15

While it’s not as common as lewd acts against a child under 14, it is also possible for those accused of these acts to be charged for sexual acts against a minor aged 14 or 15 if the defendant is more than 10 years older than the alleged victim. This offense is filed under Penal Code 288(c) (PC).

Continuous Sexual Abuse of a Child

Those accused of sexually abusing a child under 14 for an extended period of time may face enhanced penalties under Penal Code 288.5 (PC).³ This law can be applied in situations where the accused had recurring access to a child for at least three months and committed at least three sexual assaults during that period.

Annoying or Molesting a Child Allegations: 647.6 (PC)

There is also a crime called annoying or molesting a child under 18 (sometimes called sexually harassing a minor), which does not involve touching a child. Instead, it applies when someone is accused of acting in a sexually inappropriate manner toward a minor, either through words, gestures, or actions that may disturb or emotionally harm the child.

Filed under Penal Code 647.6 (PC), this crime occurs when someone, motivated by a sexual interest in children, disturbs a child, irritates a minor, or intends to be observed by a child.⁴ This law means that the behavior does not have to involve physical contact, only conduct that can reasonably be seen as sexually motivated toward a minor. Annoying and molesting a child charges can be applied even if the victim is actually under 18, as long as the offender believes the child is under 18.

Statutory Rape Offenses: Penal Code 261.5 (PC)

If a person has sexual intercourse with a minor under 18, they have committed statutory rape, filed under 261.5 (PC).⁵ This charge can be applied any time a minor has had sex, regardless of their age and whether they consented. It can even be applied if the minor initiated the activity.

The only exception applies when a juvenile has intercourse with their spouse.

Should I Talk to The Alleged Victim or Their Parents if They Call Me?

No. One common way San Diego County law enforcement officers obtain confessions for these crimes is to have the child or their parent call the suspect while police record the call.⁶

The child or parent will often use charged statements to get the suspect to admit guilt, for example, by saying the child is now having nightmares or that classmates are teasing them about what happened. Even saying, “I’m sorry” during these conversations can often be used as a confession of guilt.

If you have been accused of a sex crime involving a child, do not answer phone calls from anyone involved in the case. Let unknown calls go to voicemail. If you answer by accident, do not discuss the accusations. Simply indicate you will call your lawyer, then do so immediately.

The Best Defenses Against Child Sex Crime Charges

Sex offenses against children are serious offenses with complicated defenses. Under US law, a defendant is presumed innocent until proven guilty beyond a reasonable doubt. If you have been accused of any sexual activity involving a child, you may face significant challenges as you work to protect your reputation. Having an experienced defense attorney assist you with the process is critical when you are facing an emotionally charged allegation such as sexual assault against a child.

False Allegations

If anyone involved with the accusations could potentially benefit from your conviction, such as an ex-spouse hoping to gain custody, your criminal defense lawyer should bring that connection to light. This defense must be approached carefully, especially if you claim that an alleged child victim stands to gain something through the allegations.

Do not say anything to the police or prosecutors without an attorney present.

False Memories/Leading Questioning

Another legal defense is the “tainting” of a child’s memory through suggestive or leading interviews by a teacher, parent, therapist, or law enforcement officer. Children may agree with adults, even when discussing their own personal experiences.⁹ If adults ask questions that might influence a child’s responses about the alleged incident, the child’s statements could potentially be considered inadmissible.

Mistaken Identity

In any offense involving witness testimony, mistaken identity can be a strong defense. This strategy can be particularly useful if the victim or witnesses did not get a good look at the child’s abuser or if you closely resemble another potential suspect.

Lack of Evidence

Finding sufficient evidence to prove that sexual activities occurred is difficult, particularly if the minor chooses not to participate in the investigation.

Police Misconduct

If the police uncover any evidence illegally, your attorney may be able to have this information suppressed from the case.

What NOT to Say if You’re Accused of a Sex Crime Against a Child

Remember, what you say can be used against you, and even things you say to defend yourself may still be turned around on you and harm your defense later on. The following common attempts to deflect guilt can end up being misconstrued as confessions:

• “They Consented”
  Minors cannot legally consent. Claiming otherwise is considered a confession under the law, so avoid making such statements.
• “We Did Not Have Sex”
  While sexual penetration is an element in statutory rape, it is not required for a child molestation conviction. In these cases, the contact may not involve touching of the genitals or bare skin.
• “I Didn’t Touch the Victim”/”They Didn’t Touch Me”
  Child molestation may not involve any direct physical contact between the two parties. Convictions under 288 (PC) can be made after someone gets a child to touch themselves through clothing, and under 647.6 (PC), actions perceived as sexually motivated toward a child are sufficient.
• “I Thought They Were 18” (In 288 (PC) & 647.6 (PC) Cases)
  This can actually be a defense against statutory rape. But with child molestation, it does not matter how old you believed the child to be.
• “I Didn’t Even Get Turned On”
  Penal Code section 288 (PC) requires the accused to have intended sexual arousal or gratification, but the law does not require that arousal actually occur. Proof of intent is sufficient.

Do Not Discuss the Case With Anyone Without Your Lawyer Present

Police may arrange recorded calls between the alleged victim and the accused individual, with the intention of gathering statements that could be used as evidence, including even simple remarks, such as “I’m sorry.”

Never speak to police, alleged victims, their parents, or the District Attorney without your child molestation defense attorney present to provide legal advice.