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California Penal Code § (Section) 288.2(a)(1) and (2) – Sending or Showing Harmful Material to Seduce Minor

California Penal Code §§ [Sections] 288.2(a)(1) and (2) – Showing or Sending Harmful Material to Seduce a Minor

California Penal Code [CPC] §§288.2(a)(1),(2) - Showing or Sending Harmful Material to Seduce a   Minor – California's Penal Code Section 288.2(a)(1) makes it illegal to distribute, send, or exhibit material depicting minors engaged in sex acts or to cause that material to be sent to anyone you know or believe to be a minor. Section also (a)(1) requires that you sent the material with the intent of arousing sexual desire in yourself and/or the minor, and that the material was sent for “the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either” of you “touch an intimate body part[.]” Section (a)(2) criminalizes this conduct when the material involved doesn't depict a minor engaged in a sex act.

If you're convicted under CPC §288.2(a)(1), the penalty may be a sentence of up to five years in a state prison, a fine of up to $10,000, or both a fine and imprisonment. Conviction under Section (a)(2), on the other hand, can result in up to three years in a state prison, an identical fine, or both prison and a fine. A Felony conviction under Section 288.2 will also require lifetime “Tier Three” Sex Offender registration.

What Do California Penal Code §§288.2(a)(1) and (2) [Showing or Sending Harmful Material to Seduce a Minor] Prohibit?

In sum, to be guilty of Showing or Sending Harmful Material to Seduce a Minor under CPC §§288.2(a)(1) or (2), the prosecution must prove that:

  • You exhibited, offered to exhibit, or offered to distribute material depicting a minor in sexual conduct; OR,
  • You exhibited, or offered to exhibit or distribute, harmful material; AND,
  • You knew the character of the material; AND,
  • You knew, should've known, or you believed the other person was a minor; AND,
  • You intended to arouse sexual desire in yourself or the other person; AND,
  • You intended on a sex act or having either of you touch an intimate body part.

Defining “Showing or Sending Harmful Material to Seduce a Minor” Under CPC §§288.2(a)(1) and (2)

To convict you under CPC §§288.2(a)(1) or (2), the prosecution must prove the following beyond a reasonable doubt:

  • Exhibited… Or Offered/Harmful Material/Minor or Minors: You exhibited, sent, caused to be sent, distributed, or offered to exhibit or distribute harmful material depicting a minor or minors engaging in sexual conduct to another person; OR,
  • Exhibited… Or Offered/Harmful Material: You exhibited, sent, caused to be sent, distributed, or offered to exhibit or distribute harmful material to another person; AND,
  • Knew The Character: When you acted, you knew the character of the material; AND,
  • Knowledge: When you acted, you knew, should've known, or you believed that the other person was a minor; AND,
  • Intended/Arouse…Gratify: When you acted, you intended to arouse, appeal to, or gratify the lust, passions, or sexual desires of yourself or of the other person; AND
  • Intended/Engage… Touch: When you acted, you intended to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part.

Note: “The depiction of nudity, by itself, does not make material harmful. In order for material containing nudity to be harmful, it must depict sexual activity and it must meet the requirements for harmful material[.]” The same is true of the depiction of sexual activity.

Example: Defendant Derek has a sexual relationship with adult Girlfriend Sam. He uses the mail to send her a very graphic sexual image. But Mail Carrier misreads the address (believing a handwritten seven to be a one) and delivers the message to Neighbor. He reads the one-name recipient, “Sam,” and believes the envelope is meant for six-year-old Son Sam. Neighbor gives Son Sam the envelope; Son Sam sees the image; Neighbor, furious, uses the return address to report Derek to Police. He's arrested and charged under §§288.2(a)(1) but swears that he can't be convicted on these facts. Is Derek correct or is he guilty?

Conclusion: Derek sent a graphic sexual image. It would likely be considered harmful if viewed by a minor. We can also presume that he knew the character of the material when he sent it. We can even assume Derek sent the material to arouse himself or Girlfriend Sam and to initiate some sort of sexual contact. These are elements of the charge. But the image was meant for Girlfriend Sam; it was seen by Son Sam owing only to mis-delivery and a coincidence in names. Derek, therefore, didn't intend on a minor receiving the image. The absence of this element is enough to require acquittal. Derek is correct.     

Penalties For “Showing or Sending Harmful Material to Seduce a Minor” Under CPC §§288.2(a)(1) and (2)

Section 288.2(a)(1) can be punished as either a Misdemeanor or a Felony, depending on the facts of your case. This makes the crime a “wobbler” under California law. If you're convicted of the Felony form of the offense, you face up to five (5) years in a state prison, a fine of up to $10,000 (ten-thousand dollars), or both a fine and imprisonment. You will also be required to register as a “Tier Three” Sex Offender for the rest of your life.

If you're convicted under CPC §288.2(a)(2), you face up to three (3) years in a state prison, a fine of up to $10,000 (ten-thousand dollars), or both a fine and imprisonment and you'll have to register as a “Tier Three” Sex Offender.

Defenses To “Showing or Sending Harmful Material to Seduce a Minor” Under CPC §288.2

Four common defenses against a charge of Showing or Sending Harmful Material to Seduce a Minor under CPC §288.2 are:

You Did Not Have The Required Intent

Example: Defendant Dawn blames Victim Veronica, Ex-Boyfriend's eight-year-old daughter, for the demise of her relationship with Ex-Boyfriend. She's determined to exact revenge. She sends Veronica an email that includes a grisly picture of a child killed in a war. Veronica is terrified. Ex-Boyfriend has Dawn arrested and charged under CPC §288.2(a)(1). Dawn counters that she simply can't be convicted of the crime as charged. Should Dawn be acquitted of the accusation?

Conclusion: Dawn sent an image to a minor. She intended the image to evoke an unpleasant reaction, we can presume, and knew its character. But the image was not sexual in its content or intent; it was a sort of act of violence meant to strike at the girl. Thus an element of the crime is missing. Courts in the United States must find in favor of the defendant whenever this occurs. Dawn, it follows, is correct (although she might be charged with another crime). She should be acquitted because she did not have the required intent. 

The Material Was Used For Legitimate Purposes

Example: Defendant David has weekend custody of seventeen-year-old Victim Van. Van is David's son. They're in David's home. David, a professor of film, is teaching Van about groundbreaking 1970s films. He shows Van the movie Don't Look Now, known for its innovative editing, its use of themes, a brilliant twist ending, and a controversial sex scene considered quite graphic at the time. Van loves the film and later asks Ex-Wife, his mother, whether she has seen it. She has – and reports David for violating CPC §288.2(a)(1) because he exhibited it to Van. David swears that the film has serious artistic value and was shown to Van in educating his son. Is David guilty on these facts?

Conclusion: California law says that “[i]n deciding [ ] material's nature and whether it lacks serious literary, artistic, political, or scientific value” jurors must “consider whether the circumstances of its production, presentation, sale, dissemination, distribution, [or] publicity indicate that the material was being commercially exploited because of its prurient appeal.” The facts make it clear that David presented the film as one of several essential movies from a decade of filmmaking; it was not made to appeal to prurient interests. David was, therefore, engaged in an educational effort regarding a subject which he, a professor of film, was qualified to teach. Don't Look Now, furthermore, is regarded as a masterpiece of cinema and Nicholas Roeg's finest work. The statute provides a defense for this sort of educational effort. David is, therefore, correct. He should be acquitted because he showed Van the material for legitimate educational purposes.

The Material Itself Was Not Harmful

Example: Defendant Damian shows Victim Vern, his eleven-year-old nephew, an action film called Die Hard during the holidays (because, as Damian points out, “It's a Christmas film”). Father finds out and becomes furious. Believing wrongly that the film includes nudity, he reports Damian for committing a crime under CPC §288.2(a)(1). Damian does not understand why he is being charged. Is Damian guilty?

Conclusion: While Die Hard does contain violence and strong language, there is no nudity in the movie, which the facts make clear. The film is also considered a classic of action cinema - and a great Christmas film. But sexual content is part of the definition of “harmful material”; material which doesn't appeal to a “prurient interest” can't qualify as illegal under §288.2(a)(1). Therefore, while he exhibited a violent film containing coarse language, Damian should be acquitted. The material itself was not harmful.

You Were The Victim Of Mistaken Identity

Example: Victim Vi, aged five, picks Defendant Dickie's picture from six police-selected photos showing men matching the reported characteristics of Stranger, who showed Vi sexual pictures at Daycare School. The six photos included two that were nearly identical, those of Dickie and Stranger. Police decide to charge Dickie anyway. Dickie is arrested and charged but swears he did nothing of the kind. Should Dickie be convicted under the circumstances?

Conclusion: Dickie, as the facts make clear, was picked from a photo selection presented to a very young child. This is a potential problem. But the identification was made further suspect by two of the images being so similar as to be “nearly identical.” Dickies thus was charged based on the use of pictures that presented a substantial likelihood of generating incorrect identification. It is no surprise, then, that he was wrongly arrested; the police created the precondition for the mistake. Dickie should be acquitted, it follows, because he was the victim of mistaken identity.

Related Offenses

Note: The crimes below are described generally as “related” because they are frequently charged with CPC §§288.2(a)(1) and (2) and/or have common elements that must be proven beyond a reasonable doubt.

Included in the California Penal Code are several offenses related to Showing or Sending Harmful Material to Seduce a Minor, including: Lewd Conduct With A Minor (CPC §288(a)), Child Abuse Likely To Produce Great Bodily Harm Or Death (CPC §273a(a)), Possession Of Child Pornography (CPC §311.1(a)), Cyberstalking (CPC §653.2(a)), Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)), Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)), Statutory Rape (CPC §261.5) and “Revenge Porn” (CPC §647(j)(4)(A)).

Lewd Conduct With A Minor

The crime of Lewd Conduct With A Minor (CPC §288(a)) occurs when an adult engages in a sex act with a minor under fourteen (Section (a)) or with a minor who's fourteen or fifteen and a minimum of ten years younger than the adult (Section (c)).

Section 288 is written so that prosecutors can charge differently, depending on the ages of the victim and defendant, making Lewd Conduct With a Minor a “wobbler” crime in California. The crime is related to Showing or Sending Harmful Material to Seduce A Minor because both offenses can involve sexual conduct between adults and minor children, resulting in charges for both crimes in the same trial.

If you're convicted of the Felony form of Lewd Conduct With A Minor, the penalty may be:

  • A term up to eight (8) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment; AND,
  • An additional fine of up to $10,000 (ten-thousand dollars); AND,
  • The duty to register as a Sex Offender.

Note: Section 288 requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required. The crime is also punishable under the “Three Strikes” system. If you get at least three “strikes” on your record you will serve a minimum of twenty-five years in a state prison.

More can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions – Lewd Conduct With A Minor

To convict you under §288(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully touched a part of a child's body on the bare skin or through the clothing or you got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. You acted intending to gratify your sexual desires or the desire of the child. Finally, the child was under the age of fourteen at the time of the act.

Example: Defendant Dane, aged twenty-five, touched Victim Valerie's bare skin by running his hand along her back. Dane was trying to sexually arouse Valerie when he did so; he wanted to have sexual intercourse with her. Dane admits these things knowing that these facts establish elements of the crime of Lewd Conduct With A Minor. But Dane insists that, although he's been arrested and charged under CPC §288(a), he can't be convicted of the crime because Valerie was fourteen at the time. Is he correct?

Conclusion: Dane, as the facts state, committed all the acts required for conviction under Penal Code §288(a). But Section (a) requires that the victim be under the age of fourteen at the time of the act in question. Valerie was fourteen years of age when Dane touched her. Thus, although Dane could be charged with another applicable offense, he can't be convicted of Lewd Conduct With A Minor under Section (a). Valerie was too old to qualify for protection under the relevant provision.

Child Abuse Likely To Produce Great Bodily Harm Or Death

Child Abuse Likely To Produce Great Bodily Harm Or Death (CPC §273a(a)) occurs whenever anyone causes, permits, or inflicts unjustifiable physical or mental pain on a child. The law also applies to those having care or custody of a child if they cause or permit the child's health to be injured or endangered. 

The crime is related to Showing or Sending Harmful Material to Seduce A Minor because both crimes may involve presentation of unlawful material to a minor, resulting in charges for both in the same trial.

If you're convicted of Child Abuse Likely To Produce Great Bodily Harm Or Death, the penalty may be:

  • A term of up to six (6) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment.

Note: “Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances.”

More information can be found in the California Child Endangerment Attorney section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions – Child Abuse Likely To Produce Great Bodily Harm Or Death

To convict you under CPC §273a(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully inflicted unjustifiable physical pain or mental suffering on a child or you caused or permitted a child to suffer or, while having custody, you caused or permitted a child to suffer injury or, while having care or custody, you caused or permitted the child's person or health to be injured or, while having custody, you caused or permitted a child to be placed in danger or permitted the child to be placed in a situation where the child's health was endangered. You also inflicted pain or suffering on the child or caused or permitted the child to suffer under circumstances or conditions likely to produce great bodily harm or death or you were criminally negligent when you caused or permitted the child to suffer, be injured, or to be endangered. Finally, you didn't act while reasonably disciplining the child.

Example: Victim Vince, aged eight, is being babysat by Defendant Donna. Vince behaves so badly that Donna throws up her hands and tells him to “go outside and leave her alone.” Vince obeys her and, while running in the street, falls and badly scrapes a knee. He tells Parents that Donna told him to run in the street. Vince's Parents have Donna arrested. She's charged under CPC §273a(a). Is Donna guilty?

Conclusion: Donna had custody of Vince at the time Vince suffered his injury. This follows from being hired to babysit Vince. It could also be argued that Donna wasn't engaged in some form of discipline when she instructed Vince to go outside; she simply wanted Vince to leave her alone. But scraping a knee doesn't involve great bodily harm, nor would allowing it to happen result in charges of criminal negligence. It is, in fact, a common form of accidental injury for children. Donna is, therefore, innocent.

Possession Of Child Pornography

In California, Possession Of Child Pornography (CPC §311.1(a)) occurs when anyone causes an image or recording of a person under eighteen performing sexual acts to be brought into the state or made here. Child pornography cannot be shared, sold, or exhibited in California. Anyone who does knowing that a minor under eighteen is featured in sexual material violates the Penal Code.

CPC §311.1(a) is a “wobbler” offense; depending upon the facts, prosecutors can charge it either as a Felony or a Misdemeanor. The crime is related to Showing or Sending Harmful Material to A Minor because both crimes can involve displaying harmful material to minors.

If you're convicted of the Felony form of Possession Of Child Pornography, the penalty may be:   

  • A term of up to three (3) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment; AND,
  • The duty to register as a Sex Offender.

More information can be found on the Child Pornography information page of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – guaranteed.

California Criminal Jury Instructions – Possession Of Child Pornography

To convict you under CPC §311.1(a), the prosecution must prove the following beyond a reasonable doubt:

You sent, caused to be sent, or made a sexual image or video recording of a person under eighteen and shared, exhibited, or exchanged the material with, or sold or distributed it to, another person. Finally, you knew that the material presented someone under the age of eighteen in a sexual situation or act.

Example: Defendant Donald, a well-known actor, throws a cocktail party at which Guest sees a coffee table book containing black-and-white photographs of nude children playing on a beach. Guest reports Donald to police. Donald is charged under CPC §311.1(a). The prosecution insists that Donald has got to be guilty as charged because he knowingly possessed nude images of minors. Must Donald be guilty?

Conclusion: While Donald knowingly possessed a book containing nude images of children, the law also requires that the jury or judge determine that controversial material is “harmful.” But photographs that have a legitimate artistic purpose (and which aren't presented for sexual purposes) aren't labeled harmful under the statute. Thus the prosecution is wrong; possession of nude images of minors isn't enough to convict Donald. He may be acquitted if the images he possessed aren't considered harmful.   

Cyberstalking

Cyberstalking (CPC §653.2(a)) law makes it illegal to “place another person in reasonable fear for his or her safety [ ] or the safety of [that] person's immediate family” by using an electronic communication device to make “personal identifying information” available to a third party so that he or she will injure, harass, or make unwanted physical contact with the victim. Included are digital images, electronic images “of a harassing nature […] which would be likely to incite or produce [an] unlawful action,” and downloadable material. The crime is related to Showing or Sending Harmful Material to Seduce A Minor because Cyberstalking may involve showing harmful material to a minor, allowing the prosecution to charge you with both in the same trial.

If you're convicted of Cyberstalking, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,

Both a fine and imprisonment.

  • Note: The identifying material must've been made available against the victim's will.

California Criminal Jury Instructions – Cyberstalking

To convict you under CPC §653.2(a), the prosecution must prove the following beyond a reasonable doubt:

You placed another person, or that person's immediate family, in reasonable fear by using an electronic communication device. You made personal identifying information available to a third party so that he or she would injure, harass, or make unwanted physical contact with that person. The other person, finally, did not consent to the information being made available.

Example: After Victim Vonn ends her relationship with Defendant Deane, Deane posts the fact on a popular social networking website along with Vonn's email address (information Vonn already makes available on her own social network web page). He includes a request that mutual friends write Vonn and ask her to rethink her decision. Several do. Vonn takes offense to what she calls “their meddling” and reports Deane for Cyberstalking. Deane's arrested and charged under CPC §653.2(a). Is he guilty?

Conclusion: While Deane posted identifying information about Vonn and asked third parties to contact her, to which Vonn did not consent, the information made available had been disclosed by Vonn. Thus it can't be described as “personal”; anyone who wanted to know Vonn's email address could simply look at her social networking page. The facts also do not state that Deane posted undisclosed intimate facts; he simply stated that Vonn had left him. Finally, Deane asked only for friends to write to Vonn, not to make physical contact with her - which, in turn, makes it unreasonable for Vonn to feel fear (although she didn't feel fear anyway). Deane, therefore, is innocent. Several elements of the crime aren't present; even one missing element requires acquittal.

Contacting Minor With Intent To Commit Certain Felonies

Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)) only occurs when an adult contacts a minor with the intent of violating one of the laws listed in the statute, all of which are felonies. The statute lists fifteen different offenses.

You must know “or reasonably should know that the” person you've contacted is a minor in order to violate Section 288.3(a). The crime is related to Showing or Sending Harmful Material to Seduce A Minor because both Contacting Minor With Intent To Commit Certain Felonies and Showing or Sending Harmful Material to Seduce A Minor may involve minors committing sex acts with adults.

All violations of CPC §288.3(a) are punished as attempts at the committing the named felonies. If you're convicted of an attempted violation of one of listed crimes and the statute creating the original offense doesn't create a specific Attempt punishment, the penalty may be:

  • A term of up to three (3) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,

Both a fine and imprisonment; AND,

  • The duty to register as a Sex Offender.
  • Note: “Contacting or communicating with a minor includes direct and indirect contact or communication.”

California Criminal Jury Instructions - Contacting Minor With Intent To Commit Certain Felonies   

To convict you under CPC §288.3(a), the prosecution must prove the following beyond a reasonable doubt:

You contacted, communicated with, or attempted to contact or communicate with a minor. When you did so, you intended on committing one of the enumerated offenses with that minor. You knew or reasonably should've known, lastly, that the other person was a minor.

Example: Victim Vinton, seventeen, recently ended his relationship with twenty-year-old Defendant David. Vinton was sixteen when they began to see each other. David knew this as fact. David contacts Vinton in an effort to rekindle the romance. He sends Vinton a text message that includes a sexually explicit invitation to “do it again.” Mother, unbeknownst to David, reads the text before Vinton. She deduces that her son is having a relationship with an adult and reports David. Police arrest and charge David under CPC §288.3(a) because, they say, he is a rapist. Should David be convicted of the charge?

Conclusion: David entered into a knowing relationship with a minor – someone who, in the eyes of California law, can't consent to sex. Police are, to that extent, correct; David should be charged with Statutory Rape under CPC §§261.5(a) and (b). But §288.3(a) applies to acts that might be prosecuted under §261 (Rape), not to acts chargeable under Section 261.5. Thus, while David might be charged and convicted under §§261.5(a) and (b), he should be acquitted of violating CPC §288.3(a) because Statutory Rape is not one of the offenses listed in the statute.   

Arranging Meeting With Minor For Lewd Purpose

Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)) occurs when anyone arranges a meeting with a child for lewd purposes. The statute specifically requires exposure of “genitals or pubic or rectal area[ ] or engaging in lewd or lascivious behavior” as the purpose of the meeting.

Unlike similar offenses, you need only believe that you're arranging a meeting with a minor to violate §288.4(a)(1). The crime is related to Showing or Sending Harmful Material to Seduce A Minor because both Arranging Meeting With Minor For Lewd Purpose and Showing or Sending Harmful Material to Seduce A Minor may involve minors committing sex acts with adults.

If you're convicted under Arranging Meeting With Minor For Lewd Purpose, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $5,000 (five-thousand dollars); OR,

Both a fine and imprisonment; AND,

  • The duty to register as a Sex Offender.
  • Note: If you arrange to meet with a minor and actually arrive at the arranged place, at or around the arranged time, you become eligible to receive a term of up to four years in a state prison.

California Criminal Jury Instructions - Arranging Meeting With Minor For Lewd Purpose

To convict you under CPC §288.4(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You arranged to meet with a minor or someone you believed to be a minor. You did so motivated by a sexual interest. At that meeting you intended to expose your genitals or pubic or rectal area, or to have the minor expose his or her genitals or pubic or rectal area, or to do something else lewd or lascivious.

Example: Defendant Denny, thirty, begins an online relationship with Victim Vladimir. Denny has seen pictures of Vladimir attending events at High School and is convinced that Vladimir is fifteen. But, when Vladimir and Denny have a spat, Denny arranges a meeting. She plans on presenting Vladimir with a stuffed teddy bear when she sees him and apologizing. Parents find out about the plan, however, and, report Denny to police. She's charged under CPC §288.4(a)(1). Denny admits that she is “in love with Vladimir” but swears that she “did nothing wrong at all.” Should Denny be convicted of the charge? 

Conclusion: Denny admits to desiring to have a relationship with a minor who's half her age. She is involved with such a minor in a sense. While all this is highly inappropriate, Denny did not arrange the meeting with Vladimir for lewd reasons. She didn't intend on exposing herself, nor did she intend on Vladimir doing so. She only wanted to apologize for a quarrel. Therefore, though Denny's involvement with Vladimir should be described as morally wrong, Denny is not guilty of violating CPC §288.4(a)(1).

Statutory Rape

Statutory Rape (CPC §§261.5(a) and (b)) occurs in California whenever an adult has “[u]nlawful sexual intercourse […] with a [minor] who is not the spouse of the perpetrator[.]” For purposes of the law, “adult” means a person eighteen years of age or older, while a “minor” is under eighteen.

Section 261.5 is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant.  However, without aggravating facts, you won't be required to register as a Sex Offender for violating §261.5. The crime of Statutory Rape is related to Showing or Sending Harmful Material to Seduce A Minor because both offenses may involve sex acts between adults and minor children, resulting in charges for both in the same trial.

If you're convicted of Statutory Rape Of A Minor Within Three Years of your age, the penalty may be:

  • Imprisonment for up to six (6) months in a county jail; OR,

A fine of up to $1,000 (one-thousand dollars); OR,

  • Both imprisonment and a fine.
  • Note:  The minor's consent is not a defense to a charge of violating CPC §261.5. However, it is a defense that you reasonably believed the other person was eighteen or older. The prosecutor must prove that you didn't reasonably (and actually) believe the other person was at least eighteen.

More information can be found in the Statutory Rape section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. We guarantee that your call will go directly to a lawyer.

California Criminal Jury Instructions – Statutory Rape

To convict you under CPC §§261.5(a) and (b), Statutory Rape Of A Minor Within Three Years Of Your Age, the prosecutor must prove the following beyond a reasonable doubt:

You had sex with another person. You and the other person were not married to each other at the time. Finally, at the time of the sex, the other person was under the age of eighteen but not more than three years younger or older than you are.

Example: Defendant Davey, aged seventeen, has sex with Victim Valeria. Valeria is fifteen. When Valeria's Parents find out, they report Davey to police. Davey is charged under CPC §§261.5(a) and (b). Davey admits to sex with Valeria but insists that he can't be convicted unless Valeria, too, is charged. Prosecutors proceed against him anyway. Is Davey right about the situation or can he be convicted?

Conclusion: Davey had sex with a person under the age of eighteen. That person was not his spouse. Valeria was only two years younger than Davey when they had sex. These are the elements required for conviction under CPC §§261.5(a) and (b). Davey seems to believe that, since both he and Valeria could be charged with the crime, he and Valeria must be charged together. But this is not the case. It's not uncommon for only the elder of two underaged persons to be charged in a Statutory Rape case, in fact, where charges are pursued. Davey, therefore, is incorrect. He can (and will) be convicted of the crime.

“Revenge Porn”

It is illegal to post “Revenge Porn” (CPC §647(j)(4)(A)), defined as “intentionally distribut[ing] the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participate[d], under circumstances in which the persons agree[d] or [understood] that the image [would] remain private[.]”

If you're convicted of “Revenge Porn,” the penalty may be:

A term of up to six (6) months in a county jail; OR,

  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.
  • Note: You must've known (or should've known) that distributing the image would've caused serious emotional distress and the person depicted had to have suffered serious emotional distress.

California Criminal Jury Instructions – “Revenge Porn”

To convict you under CPC §647(j)(4)(A), the prosecution must prove the following beyond a reasonable doubt:

You intentionally distributed the image of an intimate body part or parts of another identifiable person, or an image of the person engaged in sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation by the person depicted or in which the person depicted participated. The image was created under circumstances in which it was agreed or understood that it would remain private. You knew or should've known that distribution of the image would cause serious emotional distress and, finally, the person depicted suffered that distress.

Example: Defendant Deke and Victim Vi, Deke's ex-wife, were members of a private “swinger's club” in which married couples had sex with each other's spouses. Pictures were often taken at club “meetings” and distributed to members as souvenirs. Deke, angry with Vi after an argument, decides to get back at her by posting a sexually graphic image of Vi to her Facebook page. Vi's family and coworkers see the image; Vi, horrified, reports Deke to police for creating “revenge porn.” Deke is arrested and charged under CPC §647(j)(4)(A) but defends but pointing out that the photos were taken in front of others, and distributed to all involved, so the pictures couldn't be “private.” Is he correct or should he be convicted?

Conclusion: Deke intentionally distributed a sexually graphic image of Vi. He did so in an effort to exact a measure of revenge against Vi. People close to Vi then saw the image, causing Vi to feel “horrified.” This is almost all the prosecution has to demonstrate to convict Deke. The sole issue remaining is whether the circumstances surrounding taking the picture might've led Vi to understand it would remain private. The picture was taken of a person in a members-only private club; in itself, this suggests that only members would be exposed to the images derived from their meetings. The images were, furthermore, distributed as “souvenirs,” implying that only those present to witness the events depicted were to see the photographic evidence. Finally, the pictures were distributed only to “members” of the club. These facts support concluding that the circumstances surrounding the taking of the image reasonably would have led Vi to believe that the pictures would remain private. Thus, as all the elements of the charge are present, Deke should be convicted of the crime.     

What Can I Do If I'm Charged With Showing or Sending Harmful Material to Seduce A Minor?

The State of California regards Showing or Sending Harmful Material to Seduce A Minor as a serious offense. If you're charged with Showing or Sending Harmful Material to Seduce A Minor, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

    • Reduce your sentence;
    • Or even get charges dismissed completely.
    • Negotiate a lesser charge in a plea bargain;

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities.

If you or someone you know has been arrested for, or charged with, Showing or Sending Harmful Material to Seduce A Minor, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.

References

1 See CPC §288.2 (a) (1).

2Harmful material may be sent or distributed by live or recorded telephone messages. [¶] To distribute means to transfer possession, whether or not the transfer is made for money or anything else of value.” See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

3Material is 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 it appeals to prurient interest.” See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

4 “Material, as used in this instruction, means any book, magazine, newspaper, video recording, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure or any recording, transcription, or mechanical, chemical, or electrical reproduction or any other articles, equipment, machines, or materials. Material includes live or recorded telephone messages when transmitted or distributed as part of a commercial transaction.” See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

5 “A minor is anyone under the age of 18. [Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.” See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

6The People must prove that the defendant knew the character of the material but do not need to prove that the defendant knew whether the material met the definition of harmful material.” See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

7 “For the purpose of this instruction, an intimate body part includes the sexual organ, anus, groin, or buttocks of any person, or the breasts of a female.” See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

8 See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

9 See “Wobbler” definition at UsLegal.com.

10 See Endnote 1. 

11 See CPC §672.

12 See CPC §§290 (b), (c). [Amended (as amended by Stats. 2017, Ch. 541, Sec. 1.5) by Stats. 2018, Ch. 423, Sec. 51. (SB 1494) Effective January 1, 2019.]

13 See Endnote 11.

14 See Endnote 12.

15 See “Don't Look Now” (1973) at Wikipedia.org.

16 See California Criminal Jury Instructions 1140 (CALCRIM) (2017). 

17  See CPC §288.2 (g).

18 See Die Hard (1988) at Wikipedia.org.

19  See “The 30 Best Christmas Movies” by Helen O'Hara, an article in which British readers voted Die Hard the best Christmas film ever made. Empire Online, Dec. 22, 2016.

20 See CPC §288 (c) (1).

21 See Endnote 9.

22 See CPC §288 (a).

23 See Endnote 11.

24 See CPC §288 (e).

25 See Endnote 12.

26 See CPC §§667.61 (a), (c) (4).

27 See CPC §273a (a).

28 See Endnote 11.

29 See California Criminal Jury Instructions 821 (CALCRIM) (2017).

30 See Endnote 9.

31 See CPC ‍§18 (a).

32 See Endnote 11.

33 See Endnote 12.

34 Fact pattern based on one of the accusations made against actor Jeffrey Jones in 2002. See Wikipedia.org.

35 See CPC §653.2 (a).

36 See above.

37 See Endnote 35.

38 See CPC §288.3 (a).

39 See CPC §21a.

40 See CPC §18 (a).

41 See Endnote 11.

42 See Endnote 12.

43 See California Criminal Jury Instructions 1124 (CALCRIM) (2017).

44 See CPC §288.4 (a) (1).

45 See above.

46 See Endnote 12.

47 See CPC §288.4 (b).

48 See California Criminal Jury Instructions 1072 (CALCRIM) (2017).

49 See CPC §261.5 (a).

50 See above.

51 See CPC §§261.5 (b), (c), (d).

52 See Endnote 12.

53 See CPC §19.

54 See Endnote 48.

55 See above.

56 See CPC §647 (j) (4) (A).

57 See Endnote 53.

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