Lewd and Lascivious Acts

A person accused of lewd and lascivious acts needs a skilled and experienced defense attorney. The allegations pose a grave threat to a person's hard-earned reputation and carry very serious potential punishments. Community members and even friends may turn their back on the accused even before he has had his day in court. Clients who entrust their case to attorney Richard M. Oberto can rest assured that they will receive the benefit of aggressive courtroom advocacy, a thorough investigation, and careful protection of their rights.

California law defines lewd and lascivious acts occurring in public, with minors, and with dependent adults. A lewd act in public must is punishable only as a misdemeanor. A lewd and lascivious act with a minor or dependent adult is punishable as a felony, but in some cases can be charged as a misdemeanor. The offense must be charged as a felony when it involved a minor younger than 14 years old or involved force or fear. All offenses involving lewd and lascivious acts are very serious and require lifetime registration as a sex offender.

The offense of lewd act in public requires proof of sexual touching of oneself or another in a public place where another person is present. The touching must be on the genitals, buttocks, or female breast. The accused person have had the intent to arouse himself or another person sexually or to annoy or offend another person. There must be proof beyond a reasonable doubt that the accused person knew or should have known that another person who might have been offended was present in the public place. Regular public displays of affection and ordinary vulgarity are very seldom, if ever, prosecuted under the California statute prohibiting lewd acts in public.

The punishment for a violation of Penal Code section 647(a) is up to six months in jail and a fine of up to $1,000.

The California Penal Code defines three main types of lewd and lascivious acts with minors. There is a lewd and lascivious act (1) with a minor who is 14 or 15 years old (Penal Code section 288(c)(1)), (2) with a minor who is less than fourteen years old (Penal Code section 288(a)), and (3) by force or fear (Penal Code section 288(b)(1)). In a case alleging a violation of section 288(c)(1), the accused person must have been at least ten years older than the 14 or 15 year old minor.

A lewd and lascivious act requires a touching of the body on the bare skin or through clothes. The act may occur when an accused person touches a minor or may occur when the accused person causes the child to touch him or someone else. Although the touching may occur in any region of the body, the accused person must have had a sexual intent. A touching that occurs in a private region of the body and that does not seem to have any legitimate purpose may be more likely to raise suspicion that the touching was with a sexual intent.

For a touching to qualify as a lewd and lascivious act, the accused person must have intended to produce a sexual response in himself or the child. It is not a defense that the accused person tried to arouse his sexual desire or a child's, but failed. Nevertheless, a lack of sexual response might be relevant in a case. It might support the view that the accused person touched the child for a non-sexual purpose.

Punishment for the offense of lewd and lascivious act with a minor who is 14 or 15 years old is one, two, or three years in prison or up to one year in the county jail. Punishment for the offense of lewd act with a minor younger than 14 is three, six, or eight years in prison. Punishments also can include large fines. Applicable enhancements based on aggravated conduct or prior convictions can increase potential punishments in some circumstances to as much as life in prison.

California law defines a specific offense for committing a lewd and lascivious on a minor younger than 14 when force or fear was used. The element of force or fear may be satisfied by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else. In determining whether an accused person used duress, the law permits consideration of such factors as the child's age, maturity, and relationship to the accused. The issue of force or fear may present complicated issues of fact and law.

Punishment for a violation of Penal Code section 288(b)(1) can include 5, 8, or 10 years in prison and substantial fines. The punishment can be much greater in cases involving enhancement allegations for aggravated conduct or prior convictions.

Allegations of lewd and lascivious conduct are frightening and humiliating. A person should take action by securing the very best legal representation for himself.

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.