In today’s technology-driven world, the internet has become a place for people to seek out connections with new friends, romantic partners and even sexual encounters.
Using the internet or any other means to attempt to arrange a sexual encounter with a minor is against the law, even if you never actually engage in the intended sexual act or the person who you believed to be a minor is, in fact, over the age of 18. That means that soliciting someone who you believe to be underage to engage could land you some serious and life-altering consequences including fines, jail time, and mandatory registration in the California Sex Offender Database.
Due to the prevalence and seriousness of such crimes, law enforcement officials have sought out new ways to catch those who wish to solicit sexual encounters with people they think are underage.
Sting operations such as those on the television show “To Catch a Predator” may be used to lure predators into arranging an encounter with a supposed victim. However, these types of operations leave some people open to false accusations, entrapment by law enforcement officers, or other circumstances in which a defendant may be falsely or unrightfully accused of committing such crimes.
If you are facing allegations of soliciting a minor for lewd purposes or a related crime of sexual misconduct, you do have options for your defense. A highly experienced and knowledgeable attorney can work with you to devise a strategy that will get you the best possible outcome for your case.
Legal Definition of California Penal Code 288.4 –
Elements of Solicitation of a Minor for Lewd Purposes
In California, arranging to meet with a minor for lewd purposes falls under Penal Code 288.4. This charge has three “elements”:
- The defendant arranged a meeting with a minor or a person that they believed to be a minor
- The defendant was motivated by an abnormal or unnatural sexual interest in children
- At the solicited meeting, the defendant intended to expose or have the minor expose their genitals, pubic or rectal area or to engage in lewd or lascivious behavior with the minor.
These three elements are what the prosecution must prove in order for the defendant to be found guilty of violating Penal Code 288.4. Details of each of the elements are given below.
Element 1: Arranged meeting with a minor/person believed to be a minor
Penal code 288.4 makes it illegal to arrange a meeting with any person who either is a minor, or who is believed to be a minor by the person arranging the meeting, for lewd purposes. A minor is defined as a person who is under the legal age of 18 years old, regardless of their state of physical/sexual maturity.
The fact that the perpetrator only needs to believe that the victim is a minor is particularly important, as this allows police officers to pose as minors in order to operate sting operations. Below is an example of how this scenario could take place:
Jerry plays online video games and often uses the game’s messaging system to chat with other players. Jerry starts a conversation with “Lola” who claims to be a 15-year-old who likes to “get with older guys who like to game,” but who is actually a 40-year-old detective with the Los Angeles Police Department on a sex crimes sting operation. After a series of flirtatious messages, Jerry asks “Lola” to come hang out on the couch and watch movies at his place.
Even though “Lola” is not really a minor, Jerry believed that she was when he asked her to come to his house and, therefore, may still be found guilty of violating Penal Code 288.4.
Element 2: Motivated by an abnormal or unnatural sexual interest in children
In order to secure a conviction, the prosecution must gather evidence to prove that the defendant arranges a meeting with a minor because they possess an abnormal or unnatural sexual interest in children. If, however, the defense can demonstrate that the defendant’s intentions in arranging the meeting were non-sexual in nature, then they may not be convicted of violating Penal Code 288.4.
The evidence that the prosecution will use to prove the defendant’s sexual interest in children will most likely come directly from correspondence with the minor involved in the incident(s) in question. For example, text messages or emails sent back and forth between the defendant and the minor (or person posing as a minor).
Element 3: The intent to engage in lewd or lascivious behavior with a minor
In addition to believing that he or she is arranging a meeting with a minor and doing so out of an unnatural sexual interest in children, it must be proven that the defendant also intended to do at least one of the following at the meeting in order to be found guilty of violating Penal Code 288.4:
- Expose his or her genitals, pubic area, or rectal area
- Have the minor expose his or her genitals, pubic area, or rectal area
- Engage in lewd or lascivious behavior with the minor
Lewd or lascivious conduct is defined as touching with the intent to sexually arouse. This includes the perpetrator touching the victim or the perpetrator causing the victim to touch their own body. The intent to arouse may also be attributed to the perpetrator’s attempt to arouse either themselves or the victim. It does not matter whether the touching occurs over or under the clothes for the act to be considered lewd or lascivious.
Penalties for Solicitation of a Minor in California
While it is most often charged as a misdemeanor offense, solicitation of a minor for lewd purposes is a wobbler offense in California, which means that it can be charged as either a misdemeanor or a felony, depending on the circumstances of the case. Potential penalties will differ based whether the crime is charged as a misdemeanor or felony.
The case will be charged as a felony in the following instances:
- The defendant has a prior sex crime conviction on their record which required them to register under California’s Sex Offender Registration Act.
- The defendant attended the arranged meeting. In order to be guilty of violating Penal Code 288.4, you only need to have attempted to arrange a meeting with the intent to commit lewd acts. However, the penalties will be enhanced if you show up (regardless of whether are not you commit lewd acts once there).
Misdemeanor penalties
Potential penalties for misdemeanor violations of Penal Code 288.4 include:
- A fine of up to $5,000
- Up to 1 year in county jail
- Misdemeanor probation
Felony penalties
Potential penalties for misdemeanor violations of Penal Code 288.4 include:
- A fine of up to $10,000
- 16 months, 2 years, or 3 years California state prison
- Felony probation
Sex Offender Registration
Anyone convicted of solicitation of a minor for lewd purposes is required to register as a sex offender under California’s California Sex Offender Registration Act. Those convicted of misdemeanor violations will be required to register for 10 years, while a felony conviction requires lifetime registration. California sex offender registration must be renewed annually and anytime the convicted offender moves residences.
Offenses Related to California Penal Code 288.4
There are a number of other offenses related to solicitation of a minor for lewd purposes. Some offenses may be charged along with Penal Code 288.4 which may increase the potential penalties. Others may be charged in lieu of Penal Code 288.4 and may come with either more sever or less severe penalties. It is possible that, given the circumstances of your case, an attorney may be able to have your charges reduced to one of the less serious, related crimes.
Lewd Acts with a Minor – Penal Code 288
Just as defined above, lewd or lascivious acts with a minor involve touching with the intent to cause sexual arousal. Under California Penal Code 288, it is illegal to touch a minor anywhere on his or her body for sexual purposes. If you arrange a meeting with a minor and commit lewd acts with the minor at that meeting, you will be charged under both Penal Code 288.4 and Penal Code 288. However, penalties for Penal Code 288 will only apply if the minor is under 14 years old or if the minor is 14 or 15-years-old and the defendant is 10 or more years older than them.
Penal Code 288 is a wobbler. Whether or not it is charged as a misdemeanor or felony depends on the age of the child. Lewd acts with a minor under 14-years-old is always charged as a felony.
Sending Harmful Material to a Minor – Penal Code 288.2
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Under Penal Code 288.2 it is illegal to send sexually explicit or obscene material to a minor with the intent to seduce the minor and to sexually arouse yourself and/or the minor. This includes the sending of material by any means including email or text message. Penal code 288.2 is often charged in conjunction with Penal Code 288.4 as explicit materials are often sent as part of the correspondence between the defendant and the minor.
Statutory Rape – Penal Code 261.5
Under Penal Code 261.5 it is illegal to engage in sexual intercourse with a minor. Both consensual and non-consensual intercourse are considered statutory rape if one party is under 18 years of age. It is possible to be charged with violating both Penal Code 261.5 and Penal Code 288.4 if you are involved in an ongoing sexual relationship with a minor. Statutory rape can be a misdemeanor or a wobbler defense depending on the difference in age between the defendant and the victim with differing penalties as listed below:
- Age difference of 3 years or less: charged as a misdemeanor
- Age difference of more than 3 years: can be charged as a felony or misdemeanor. Penalties include a jail sentence of up to 3 years.
- Defendant is over 21 and minor is under 16: can be charges as a felony or misdemeanor. Penalties include a jail sentence of up to 4 years.
Loitering at a School – Penal Code 653b
Loitering at a school is a misdemeanor crime which consists of spending time at a public place where children congregate such as a school or park, with the intent to commit a crime while there. While a similar crime to soliciting a minor for lewd purposes and one that still carries harsh penalties, defendants who are convicted of violating Penal Code 653b are not required to register as sex offenders.
California Child Pornography Crimes
Crimes involving material depicting minors involved in sexual activity fall under California’s child pornography laws. These crimes may involve the possession, production, sale, or exchange of child pornography as well as soliciting minors to participate in the production of child pornography. Depending on the specific details of the case or the correspondence between the defendant and the victim, it is possible to be charged with committing child pornography crimes in addition to solicitation of a minor for lewd purposes. California child pornography charges are most often felonies or wobblers.
Legal Defenses for Solicitation of a Minor for Lewd Purposes Charges
If you have been charged with solicitation of a minor for lewd purposes, there are several defense strategies that your attorney may choose to use in your case. Below are some of the most common strategies.
Entrapment
If a law enforcement officer harassed or coerced you to attempt to meet with a minor, you may be able to use the defense of entrapment. If you can prove that you would not have solicited a minor if a law enforcement officer hadn’t used pressure, threats, fraud, flattery, or harassment to get you to do so, then you may not be found guilty of violating Penal Code 288.4.
False accusation
You may have been falsely accused of soliciting a minor for lewd acts if either:
- A minor falsely accuses you of attempting to arrange a meeting with them with the purpose of committing lewd acts
- Someone else engaged in solicitation of a minor for lewd purposes by impersonating you. Methods of impersonation could include using your computer or cell phone, hacking into your email account, or acquiring your screen name and password.
Good faith belief that the alleged victim was over 18
You may be able to succeed in avoiding a conviction of violating Penal Code 288.4 if you can prove that you didn’t know that the victim was under 18 years of age. While the validity of this defense hasn’t been solidified, if you have evidence to support that you believed the victim to be an adult, particularly if the victim claimed to be at least 18 years old, a jury may choose to relieve you of your charges.
Lack of intent to engage in lewd activity
According to the “elements” of the crime, you are not guilty of violating Penal Code 288.4 if you did not have the intent to engage in lewd behavior at the arranged meeting. This is true even if you arrange a meeting with a minor and are motivated by an abnormal sexual interest in children. If the arranged meeting is set to take place at a time or location that indicates that you did not intend to commit lewd acts, such as a public place, it may be apparent that the meeting lacked the necessary intent.
Lack of motivation by a sexual interest in children
Another “element” of the crime that the prosecution must prove for you to be convicted under Penal Code 288.4 is that the defendant was motivated to arrange a meeting with a minor due to an abnormal or unnatural sexual interest in children. If you had a different motivation for arranging the meeting, such as loneliness, or to get to know them in a non-sexual or non-romantic way you may be able to argue that you are not guilty of violating Penal Code 288.4.
If you have been charged with soliciting a minor for lewd purposes, your freedom and future may be in jeopardy. Don’t hesitate to contact an experienced and dedicated attorney who will fight for you every step of the way. As a criminal defense attorney with over 40 years of experience representing clients in the Los Angeles area, I have the skills and knowledge that it takes to help get you the best possible outcome for your case. Contact my firm today to set up a consultation.