What Evidence of “Touching” is Required to Prove a PC 288?

PC 288 is referred to as lewd act on a child or child molestation.  The crime requires proof of a lewd touch or touching.  Whether the touching is lewd or lascivious and “lewdly” performed depends upon the sexual motivation and intent with which it is committed.  Inadvertent or casual non-offensive touching that is unaccompanied by direct or circumstantial evidence of an intent to arouse, appeal to, or gratify either the lusts, passions or sexual desires of the defendant or the child are insufficient to qualify as a lewd and lascivious touching.  According to one Los Angeles 288 Lawyer, the “any touching” provision of the law of Penal Code section 288 regarding a charge of a lewd act with a child under 14 (PC 288(a) and (b)) was upheld by the California Supreme Court in People v. Martinez (1995) 11 C4th 434.  However, Martinez made it clear that whether the touching is lewd or lascivious depends on the sexual motivation and intent with which it is committed.  The intent element is crucial to making a determination of whether a crime has taken place.

In addition, the concurring opinion of Justice Baxter in People v. Lopez (98) 19 C4th 282, 291  discussed the fact that in inadvertent or casual non-offensive touching that is unaccompanied by direct or circumstantial evidence of an intent to arouse, appeal to, or gratify the lusts, passions or sexual desires of the defendant or the child is insufficient to qualify as lewd and lascivious touching.  While the intent element is included in the jury instruction recitation of elements, when the defense is based on a theory that the touching was inadvertent or casual non-offensive touching, the defense should have a right to instruction upon that theory.  Because the law of 288 is complex, a Los Angeles 288 attorney should be consulted prior to coming to any conclusions about the legality of the offense is made.

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