WHAT IS CONSIDERED A SEX CRIME?

According to the California Department of Justice, over 40,000 sex crimes were reported in the state in 2022.

Sex crimes are prosecuted with the utmost fervor as state prosecuting agencies receive massive federal funding for special sex crime task forces. This funding and other laws to toughen sex crime sentences and make obtaining sex crime convictions easier is part of a multi-generational campaign by well-meaning but misinformed activists who never consider that such accusations are often false, motivated by parental pressure during custody battles, suggestibility, mental illness and the desire for revenge (for example in response to parental discipline).

This “group think” prejudice has affected every level of the legal system, including police, prosecutors, health care professionals, and even judges and jurors. The practical effect is that the accused has been stripped of their right to the presumption of innocence. Instead, one accused of a sexual offense must prove their innocence from the moment such an accusation is made.

Thus, while we attempt here to provide a basic understanding of some of the most common sex offense charges, it is imperative to seek legal advice from an attorney with experience and expertise in defending against such accusations. This includes knowing how to counter this groupthink prejudice.

For the purpose of our discussion here, we will consider any offense that would require registration as a sex offender a “sex crime.”[1] These offenses are generally broken down into five categories: 1) Sex crimes against minors (broadly referred to as “Molestation”); 2) Sex crimes against adults (broadly referred to as Sexual Assault); 3) Child pornography; 4) Cyber-sex crimes (sometimes referred to as “Internet Stings” and includes attempted molestations), and 5) Indecent Exposure.

We will focus on the most common charges and outline the elements of each offense, some defenses and the range of sentences that could be imposed. The purpose is to allow you to rapidly find the offense you are interested in and understand its basics within minutes. Finally, we will also discuss “collateral consequences,” such as sex offender registration.

MOLESTATION 

In many cases, it would be better to be charged with murder than to face molestation charges. If you are under investigation or have been falsely accused, this is designed to provide a basic understanding of your situation.

Here are the details regarding the most common molestation code sections:

• PC 288(a)/(b) prohibits lewd acts on a child under the age of 14.
  • The Elements are:
    • Defendant willfully and lewdly touched the body of a child.
    • The child was under 14 years of age.
    • The touching was done with the intent to arouse, appeal, or gratify the lust, passions, or sexual desires of the defendant or the child.
  • Defenses include:
    • The alleged victim is not under 14.
    • Contact was not sexual in nature.
    • False accusation.
  • Sentencing ranges are:
    • If no force is used: 3, 6 or 8 years in state prison with eligibility for Felony Probation.
    • If Force or duress is used: 5, 8 or 10 years in state prison.

• PC 288.7(a) Sodomy with of a child under 10.
  • Elements
    • Defendant was 18 years of age or older.
    • Defendant engaged in sexual intercourse or sodomy with the victim.
    • The alleged victim was 10 years of age or younger.
  • Defenses
    • Victim was 10 years old or older.
    • Contact was not “sexual” in nature.
    • False accusation.
  • Sentencing
    • 25 to life
    • Probation Eligibility: No.
    • Three Strikes Law (2 prior felonies) – Life
    • Two or more Victims (Life)
      
      
• PC 288.7(b) Sexual Penetration/oral Copulation of a child Under 10.
  • Elements
    • Defendant was 18 years of age or older.
    • Defendant engaged in oral copulation or sexual penetration with the victim.
    • The alleged victim was 10 years of age or younger.
  • Defenses
    • Victim was over 10 years old.
    • Contact was not “sexual” in nature.
    • False accusation.
  • Sentencing
  • 25 to life Low/Mid/High Term
    • Probation Eligibility: No.
    • Three Strikes Law (2 prior felonies) – Life
    • Two or more Victims (Life)
• PC 287 Oral Copulation with a minor:
  • Elements:
    • Defendant engaged in an act of oral copulation with a person. “Oral copulation” is defined as any contact between the mouth of one person and the sexual organ or anus of another.
    • The Victim was under 18 years of age.
  • Defenses
    • The alleged victim is not a minor.
    • Contact was not sexual in nature.
  • Sentencing
    • Victim Under 18:
      • Low: 16 months
      • Mid: 2 years
      • High: 3 years
    • Victim Under 16
      • Low: 3 years
      • Mid: 6 years
      • High: 8 years
    • Victim Under 14
      • Low: 7 years
      • Mid: 9 years
      • High: 11 years
    • Up to Life:
      • Substantial sexual conduct under 10 - oral cop/penetration
      • Third strike
      • Two or more Victims
    • Probation eligible: Only if the Victim is 17 or older.

• PC 286 Sodomy with a minor
  • Elements
  • Defendant participated in an act of sodomy with Victim.
  • The Victim was under 18 years of age. [PC286(b)(1)]
• Defenses
  • Reasonably believed the victim an adult(limited)
  • False allegation
  • Consent
• Sentencing
  • Victim Under 18:
    • Low: 1 year 4 months
    • High: 2 years
  • Victim Under
    • Low 16 months
    • Medium: 2 years
    • High: 3 years
  • Victim Under 14
    • Low: 9 years
    • Mid: 11 years
    • High: 13 years
  • Probation Eligibility: Yes, if the victim is 14 or older.
  • Three Strikes Law (2 prior felonies) – Life.
  • Two or more Victims (Life).

• PC 288.5 - Engaging in the continuous sexual abuse of a child under 14 years of age.
  • Elements
    • Defendant was a resident with the minor or had recurring access to the minor; and
    • Defendant, over a period of not less than 3 months, engaged in 3 or more acts of substantial sexual conduct, or 3 or more acts of lewd or lascivious conduct, with the victim who was under the age of 14 years at the time.
  • Defenses
    • The alleged victim was not a “child.”
    • There were no sexual acts.
    • False accusation.
    • No recurring access.

It should be noted that there are “Enhancements” or circumstances under which a life sentence may be imposed for molestation offenses. These include:

• Two or more Victims
• D has prior PC 261(a)(2)(6), 262(a)(1)(4), 264.1, 286, 287, former 288a, 288(a)(b), 288.5 or 289(a)
• D kidnapped victim - movement of victim substantially increased risk of harm to victim
• D inflicted aggravated mayhem (PC 205)
• D tortured victim (PC 206)
• Act committed during residential (1st degree) burglary - D intended to commit sex act
• D personally inflicted GBI (PC 12022.53, 12022.7, 12022.8)
• D personally inflicted bodily harm on ·victim under 14 years of age
• D kidnapped victim - movement did not substantially increase risk of harm to victim
• D Act committed during residential burglary or commercial burglary when building closed to public
• D used a weapon (PC 12022, 12022.3, 12055.5, 12022.53)
• D convicted of specified sex offenses against more than one person
• D engaged in tying or binding victim or another
• D administered controlled substance (PC 12022.75ZX)

RAPE/SEXUAL ASSAULT

For decades the crimes of rape and sexual assault have been known as the easiest criminal allegations to make by an alleged victim and the hardest to disprove by the accused. These crimes include date rape, rape with a foreign object, gang rape, spousal rape and a plethora of other offenses under penal codes 262,264,266, 286 and 289.

Defenses in such cases often center around the issue of consent. Rape shield laws prevent the introduction of the accuser’s previous sexual history to prove consent. However, an experienced attorney may be able to introduce such evidence on other relevant grounds.

Sentences for Rape run from three to six years. A convicted person also faces sex offender registration, one or more strikes, loss of firearms rights, loss of professional license and, importantly, loss of livelihood and reputation.

Here are the details regarding the most common Sexual assault code sections:

• PC 243.4 – Sexual Assault
  • Elements
    • Touching the intimate part or parts of another person.
    • The touching was against that person’s will.
    • The touching was for the purpose of sexual arousal, gratification, or abuse.
  • Defenses
    • Consent
    • Insufficient Evidence
    • False Allegation
  • Sentencing
    • Low 2 years
    • Mid 3 years
    • High 4 years
    • Probation Eligibility: Yes.
    • Three Strikes Law (2 prior felonies) – Life
  • PC 261 - Rape
    • Elements
      • The defendant engaged in an act of sexual intercourse with a person other than the defendant's spouse.
      • The act of intercourse was against the will of the alleged victim.
      • The act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the alleged victim or to another person.
      • The offense involved separate victims or involved the same victim on separate occasions. [PC 261 (a)(2)]
    • Defenses
      • Consent
      • No sexual intercourse occurred
      • False accusation
    • Sentencing
      • Low 8 years
      • Mid 10 years
      • High 12 years
      • Probation Eligibility: No.
      • Three Strikes Law (2 prior felonies) – Life

CHILD PORNOGRAPHY

If you have been accused of, arrested for, or implicated in trafficking, exchanging or possessing child pornography, you are in serious jeopardy. These crimes include violation of PC 311. 311.11, 18 USC 2251, 2252.

Child pornography cases can be tried in either federal or state courts. Federal prosecution is far more serious, with longer mandatory sentences of up to 40 years. Every effort should, therefore, be made to keep a case of this kind in state court if possible.

Defending cases alleging child pornography offenses may depend on both legal and technical expertise. Your team may be called on to prove that unlawful files:

• Were Unrequested.
• Were obtained and stored by another user.
• The result of malware.
• Were possessed only for the purpose of deletion.

Most lawyers do not have the experience to try a child pornography case at either the state or federal level. They may, therefore, urge the accused to accept a plea bargain without having first made an investigation of available defenses. The Innocence Legal Team is different. We thoroughly investigate and prepare a case before considering a plea bargain.

Here are the details regarding the most common child pornography code sections:

• PC 311.11(a) – Possession of Child Pornography
  • Elements
    • Defendant knowingly possessed or controlled any matter, representation of information, data, or image that contained or incorporated in any manner obscene matter involving the use of a person under the age of 18 years.
    • Defendant knew that the matter depicted a person under the age of 18 years personally engaging in or simulating sexual conduct.
  • Defenses
    • Did not know the person depicted was under 18.
    • Did not possess child pornography.
    • Unlawful search and seizure.
  • Sentencing
    • Low: 16 months
    • Mid: 2 years
    • High Term: 3 years
    • Probation Eligibility: Yes
  • PC 311.10(a) – Distribution of Child Pornography
    • Elements
      • Defendant advertised for sale or distribution any obscene matter.
      • Defendant knew that the obscene matter depicted a person under the age of 18 years engaging in or personally simulating sexual conduct.
    • Defenses
      • Did not know the person depicted was under 18.
      • Did not possess child pornography.
      • Unlawful search and seizure.
    • Sentencing
      • Low: 2 Years
      • Mid: 3 years
      • High Term: 4 years
      • Probation Eligibility: Yes
    • 18 USC 2252 (Federal Charge) - Possession of Child Pornography
      • Elements
        • Defendant knowingly possessed media depicting a minor[s] engaged in sexually explicit conduct.
        • Defendant knew visual depictions contained in the media were of a minor[s] engaged in sexually explicit conduct.
        • Defendant knew that the production of such visual depictions involved the use of a minor in sexually explicit conduct.
        • Each visual depiction had been transferred using any means or facility of interstate commerce or affecting interstate commerce.
      • Defenses
        • Defendant did not possess the depictions.
        • The Depictions were not of minors.
        • Defendant did not know that the depictions were of minors.
        • Defendant did not know the visual depictions were created with the use of minors in sexually explicit conduct.
        • The depictions were not transferred in interstate commerce, and the transfer did not affect interstate commerce.
      • Sentencing
        • 5 years to 20 years for first-time offense

INTERNET STINGS (CYBER ENTRAPMENT)

You can be prosecuted and convicted just for role-playing on the Internet. This includes arranging a meeting with or sending “harmful matter” to a minor for a sexual purpose or attempting to do so.

California law has allowed decoys to snare hundreds if not thousands of innocent individuals who had no intention of meeting a minor. Often, these prosecutions do not involve any actual minors whatsoever.

Because no minor is involved, it is factually impossible to be accused of child molestation. However, an individual can still be charged with Attempted Child Molestation (Penal Code § 664/288(a)) because factual impossibility is not a defense to an attempt. How serious is this? In California, “attempt” crimes carry one-half of the sentence for the underlying offense. Since violation of 288(a) (Lewd acts with a minor under the age of fourteen years) carries a sentence of eight years in prison, an attempted lewd act with a minor under the age of fourteen carries four years in the state prison.

During these "sting chats" between police decoys posing as minors, a suspect may engage in “cybersex” role-playing. A Police decoy posing as a minor will often ask the target to send images, which can also be considered “harmful matter,” a violation of Penal Code § 288.2/311.3.

PC 288.2 – Transmitting explicit or obscene matter to a minor with the intent of sexually arousing the sender and/or the recipient and/or seducing the recipient.

Here are the details regarding the most cyber-sex code sections:

• PC 288.2 – Transmitting explicit or obscene matter to a minor with the intent of sexually arousing the sender and/or the recipient and/or seducing the recipient.
  • Elements
    • Defendant knowingly sent, exhibited, distributed or offered to distribute by any means, obscene matter, or live or recorded telephone messages to a minor.
    • Defendant knew that the victim was a minor or failed to exercise reasonable care in ascertaining the true age of the minor.
    • The defendant acted with the specific intent to arouse, appeal to or gratify the lust, passions, or sexual desires of his or herself or the child.
  • Defenses
    • Defendant did not transmit any “harmful matter.”
    • Any matter transmitted was not “harmful.”
    • No criminal intent.
  • Sentencing
    • Low: 2 years.
    • Mid: 3 years.
    • High: 5 years
    • Probation Eligibility: Yes.

• PC 288.3 Contacting a minor with the intent to commit a lewd act.
  • Elements
    • The defendant willfully and lewdly touched the body of a child.
    • The child was under 14 years of age.
    • The touching was done with the intent to arouse, appeal, or gratify the lust, passions, or sexual desires of the defendant or the child.
  • Defenses
    • No intent to commit one of the underlying offenses.
    • Did not know the person was a minor.

• • Sentencing
    • Low: 1 year, 6 months.
    • Mid: 3 years
    • High: 4 years.
    • Probation Eligibility: No.
    • PC 288.4 - Arranging a meeting with a minor with the intent to engage in sexual conduct.
      • Elements
        • Defendant arranged a meeting with a minor or person he or she believes to be a minor for the purpose of (1) exposing his or her genitals or pubic or rectal area, (2) having the child expose his or her genitals or pubic or rectal area, or (3) engaging in lewd or lascivious behavior.
        • Defendant was motivated by an unnatural or abnormal sexual interest in children.
        • Defendant went to the arranged meeting place at or about the arranged time.
      • Defenses
        • Not motivated by a sexual interest in children;
        • No intent to engage in lewd activity at the meeting;
        • Did not know the other person was a minor;

• • • • Sentencing
        • Low: 2 years.
        • Med: 3 years.
        • High: 4 years.
        • Probation Eligibility: Special case.
          
          
      • 664/288a Attempted Lewd Act on a child under the age of 14
        • Elements
          • Defendant intended to arouse, appeal, or gratify the lust, passions, or sexual desires of the defendant or the child and took a direct but ineffective step to lewdly touch the body of a child under 14 years of age.
        • Defenses
          • No direct act to commit a lewd act on a child.
          • No intent to commit a lewd act on a child.
          • Abandonment of the attempt.
        • Sentencing
          • Low: 16 months,
          • Mid: 4 years,
          • High: 4 years.
          • Probation Eligibility: Special case. 

INDECENT EXPOSURE

Indecent exposure (PC 314) often conjures images of public nudity. However, California law goes beyond simple exposure. Indecent exposure is one of the most common offenses which can lead to sex offender registration. It can be either a felony or a misdemeanor (this is called a “wobbler”).

• PC 314 – Indecent Exposure
  • Elements
    • Defendant willfully and lewdly exposed his genitals in the presence of another person.
    • The person was offended or annoyed by the defendant’s actions.
    • Defendant intended to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person or sexually offending another person.
    • Defendant entered an inhabited dwelling without consent.
    • The willful and lewd exposure occurred after the defendant entered the inhabited dwelling.
  • Defenses
    • No one else was present.
    • Genitals were partially clothed
    • No sexual gratification intent
    • Act was not “lewd”
  • Sentencing
    • Low 1.4 years
    • Mid 2 years
    • High 3 years
    • Probation Eligibility: Yes.

COLLATERAL CONSEQUENCES

This section explores the potential collateral consequences of such accusations. These are indirect yet significant repercussions that can affect your life in various ways including employment, housing, and even relationships. Depending on the particular offense, a convicted individual may face one or more of the following collateral consequences.

• Strike (possibly increasing the sentence to life in prison).
• Serious and Violent Felony.
• Possible Professional License revocation/suspension.
• Ineligible to vote while incarcerated.
• Ineligible to hold public office for life.
• Loss of the right to serve as a juror while incarcerated or on supervision.
• Impeachment of testimony possible
• Deportation if not US citizen
• Firearm prohibition
• Sex Registration
• DNA Bank

GET HELP NOW

This blog is not intended as legal advice. If you are facing a sex crime accusation, you need an experienced legal team on your side. The Innocence Legal Team may be your best hope of prevailing. We have gathered the most talented attorneys, paralegals, experts, and investigators in the state. They are smart, tenacious, and dedicated to winning. They are your army, every bit and even more capable than any DA or prosecutor’s office. Please use the link below so that we can begin helping right away.

[1] The Innocence Legal Team is California’s most experienced sex crime defense law firm. Therefore, our discussion centers on California law. The California sex crime registration statute (“Megan’s Law”) is California Penal Code (PC) 290.