Child Molestation Information and Frequently Asked Questions
In this part of our site, we will explain the various laws surrounding child molestation offenses in California, and help you to understand why having an experienced attorney on your side is vital when you are facing these kinds of accusations. Any child molestation allegation can ruin your life – you stand to lose your job, your family, your freedom, and face the rest of your life as a registered sex offender. Do not leave the outcome of your case in the hands of an inexperienced attorney. At Fitzgerald Law Group P.C., we do not want you to become a victim of the ‘witch-hunt’ mentality that so often surrounds sex offenses. We believe in vigorously defending accusations, and protecting clients from false allegations. We will get involved with your case as early as possible, when necessary bring in our investigators and experts, and try to avoid charges being filed altogether.
What is child molestation?
Child molestation is covered by several offenses at Sections 288 and 289 of the California Penal Code.
The following acts are considered to be molestation of a child:
- Oral copulation
- Intercourse with a juvenile
- Touching a child for sexual gratification, even if the touching does not happen on the genital area.
- To have a juvenile expose themselves
- For an adult to expose themselves to a juvenile for sexual gratification
There are also several offenses that involve communicating with juveniles, such as sending or showing harmful material to them, or communicating with a juvenile with intent to commit a felony, or trying to arrange a meeting to engage in lewd activities. In many of the offenses under this part of the Penal Code, the age of both the juvenile and the defendant, and the kind of act committed, can change the level of seriousness of the offense significantly. We outline these various offenses in detail in this part of our website, and you can use the menu on the left hand side of the page to navigate to specific offenses. This is a very complex area of the law, and if you have been accused of any offense related to child molestation, you should contact Fitzgerald Law Group P.C. immediately.
CHILD PORNOGRAPHY LAW EXPLAINED
California Child Pornography Law
Federal and state authorities in the Southern California area serious about investigating, charging and prosecuting cases involving the downloading or viewing of child pornography. Viewing Child Porn can lead to either a state or federal criminal case.
Often local authorities will communicate with the federal authorities about a case. Then they will determine whether the case is serious enough, involves more than one state or involves multiple defendants such that it might warrant a federal prosecution and federal resources. Generally, it is much more desirable to have child pornography cases tried in state court since sentences are more flexible and not as stringent.
The Law Offices of Nicola Fitzgerald understands how to navigate these waters and will discuss these strategies with our client.
Dost Factors Evaluated by the Courts
The United States Supreme Court has ruled on child pornography and decided that child pornography can be regulated in any manner overriding First Amendment free speech rights. Defense attorneys often refer to “Dost Factors” relating to the U.S. v. Dost case (1986). The factors examine the focal point of the visual depiction.
- Whether the setting is visually suggestive.
- Whether the child is posed in appropriate attire.
- Whether the child is nude, semi-nude etc.
- Whether the image indicates the child’s willingness to engage in sexual activity.
- Whether the picture is meant to elicit a sexual response from those viewing it.
The Court has ruled that certain images of fully-clothed children may constitute child pornography, however and therefore courts have truly drawn a line in the sand to protect children.
California Child Pornography Laws
In California, state child pornography cases hinge on the knowing possession of images or other matter depicting people under 18 engaging in or simulating sexual conduct. (See Penal Code Section 311.11.) These cases are felonies that can result in state prison time. Second time violations or violations by those who have prior registrable offenses can involve prison time of 2 to 6 years and may result in a sex offender registration.
Simulation Sexual Conduct
Simulating Sexual conduct is vaguely worded under California state law and initially police may point to images of children without clothes on OR children with or without clothes engaged in sexual activity (including but not necessarily intercourse) with other children or with adults. Authorities view different levels of child pornography with varying levels of culpability.
Possession of Child Pornography v. Distribution of Child Pornography
As mentioned above, authorities distinguish people who download other people’s child porn from people who distribute porn to others. Most culpable are those who distribute porn which was derived or generated from them, such as photos or footage of a young family friend or relative. Under California Penal Code section 311.3, sexual exploitation of a child includes the duplication or transmission of data or images including film, photos or videos (or the like) that contains or incorporates any film that depicts a person under 18 engaged in sexual conduct, which is defined as (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral anal, whether between persons of the sale or opposite sex or between humans and animals; (2) Penetration of the vagina or rectum by any object; (3) Masturbation for the purpose of sexual stimulation of the viewer; (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer; (5) exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer; (6) Defecation or urination for the purpose of sexual stimulation of the viewer.
Penal codes 311.4 and 311.2: Employing Minors to Participate in of Help Produce Child Pornography
Under Penal Code section 311.4 using or employing a minor to conduct these acts are prohibited.
Penal Code section 311.2 specifically outlaws sending or bringing in to the state offending material of minors (under 18) engaging in sexual conduct with the intent to distribute or exchange with others is guilty of a felony punishable by state prison sentence of 2 to 6 years or a fine of up to $100,000.
The “Lack of Knowledge” Defense to a Child Pornography Charge
A defense to each of these sections would be that one did not know (and should not reasonably know) that the subject was a minor. However many defendants claim this defense and your attorney will discuss how to use it appropriately.
Means of Transfer or Storage of Child Pornography
The laws make it clear that any means of transfer or storage counts. They can be on film, filmstrip, photograph, negative, slide, photocopy, videotape, laser disc, computer hardware, computer software, floppy disc, data storage media, CD-ROM, or computer generated equipment or any other computer generated image.
Frequently people who view child pornography will attempt to evade the system. They will download images to a disk from someone else’s computer, including their own child’s computer. This process often backfires when police come to their door with a warrant and confiscate all electronics from the home.
Warrants, Searches and Seizures
In order for police to take items to build a case against you, they either need a warrant or they need your permission. So long as a warrant mentions the kinds of items to be seized with some specificity, authorities will be able to seize electronics and other items at wholesale. Zealous authorities may act with a sense of urgency when entering your home in order to achieve an effective response from the accused. It is best to invoke your right to remain silent in those instances. During these searches, it is quite possible that despite a home being torn up by authorities who search for and seize items, the suspect remains just a suspect who is not arrested. Whether one is arrested at that point or not, it is a good idea to contact your lawyer and anticipate and plan for the future arrest.
Sex Offender Registration / Certificate of Rehabilitation and Governor’s Pardon
Viewing and transmission of child pornography is an offense that generally requires registering as a sex offender where you live, including through Meghan’s List which makes the information available on the internet. Registration is a requirement that goes on indefinitely unless, well after the case is done, one can prove he has been rehabilitated or, in a less likely scenario, by governor’s pardon.
Counseling and Treatment Programs for Sexual Addiction
There are counseling and treatment programs for people with sexual addictions or unhealthy fetishes and extreme desires. Someone who has been charged with a crime relating to child pornography would be wise to investigate counseling or treatment programs both because they may be helpful and because such programs might be viewed favorably by the judge and others involved in your case. Some courts will include counseling as part of a lighter court sentence.
Political and Economic Realities of Child Pornography Cases
Because protecting children is a great concern and because of the sudden freedom of information flowing due to the internet, some say there is an overreaction by politicians and that sentences and other penalties for child pornography cases is out of proportion. This may be a valid point where children are unharmed or where an unsuspecting recipient of porn receives hundreds of illegal files through a file-sharing site. Where a young adult makes a great error in judgment, he may have to live with that decision 60 years later. Although lifelong registration may seem like a workable solution to the matter of sex offenders living near people with kids, these rules of registration typically prevent people trying to reintegrating into society, from obtaining jobs, and from surviving in any meaningful way.
INDECENT EXPOSURE LAW IN CALIFORNIA: QUESTIONS AND ANSWERS
What exactly is indecent exposure?
Indecent Exposure is an offense under California Penal Code 314 (CA PC 314). To engage in indecent exposure refers to willfully exposing your genitals to someone else, either for your own sexual gratification or to sexually offend the other person. It is also considered an offense to ask or assist someone else to do this.
This charge is considered to be more serious than lewd conduct in a public place – and a conviction will result in an obligation to register as a sex offender.
There is also a related charge called aggravated indecent exposure in which the offense occurred after entering a dwelling without permission.
Is indecent exposure a felony or a misdemeanor?
In California, indecent exposure is treated as a misdemeanor for a first offense, and a felony for any second or subsequent convictions.
If you are charged with Penal Code 314 indecent exposure, it means that you are accused of ‘willfully and lewdly’ exposing your private parts (or asking or helping someone else to) in a public place, or in a place where there are other people around to be offended or annoyed. That charge will be treated as a misdemeanor, except if :
- You have been convicted of this offense before; or
- You have been convicted of Penal Code 288 (lewd act with a child) before.
If you have either of those previous convictions on your record, then you will be charged with indecent exposure as a felony.
The penalties and consequences that result from being convicted of a felony can be quite serious. Further, whether or not you are facing a misdemeanor or a felony indecent exposure charge, a conviction will mean that you have to register for the rest of your life as a sex offender. If you are charged with indecent exposure, contact The Law Offices of Nicola Fitzgerald to discuss your options to reduce or dismiss the charges and to fight for the best result possible.
What evidence will the Prosecutor use to try to prove an indecent exposure charge against me?
To prove the offense of Penal Code 314 indecent exposure in California, the prosecutor needs to establish the following elements beyond reasonable doubt:
- That you willfully exposed your genitals/private parts in the presence of another person/s who might be offended or annoyed by your actions; and
- That you intended to direct public attention to your genitals for the purpose of either sexually gratifying yourself or someone else, or to sexually offend someone else.
What does each element mean?
This means to do the act willingly or on purpose. So, for example, if the exposure is accidental, then there is no way that you have committed an offense under this section. For example, if a man uses a restroom at a mall and forgets to zip up his pants properly, leaving part of his penis exposed when he leaves the restroom, this is not an offense – even if someone saw it and was offended by the exposure.
For the purposes of this offense, ‘private parts’ means the exposure of your bare genitals – it does not refer to things such as the exposure of underwear or bare female breasts.
In the presence of another person/s who might be offended or annoyed
This means that the prosecution has to show that, when you exposed yourself, you were around someone else. They do not need to prove, however, that the other person actually saw your exposed genitals. Even if you were in a public area, if you believed you were in a place where no one could see you, then this element is not satisfied.
As to the fact of someone else who might be offended or annoyed, again, the prosecution does not need to show that another person was actually offended or annoyed – just that there was someone around who might have been. This means that who that person is does not really matter – the other person could be a school girl who is offended or upset, or it could be an male doctor who doesn’t really care – either way, their presence will be sufficient to prove this element.
With intent to direct public attention to your genitals.
This element requires the Prosecutor to prove that you had the specific intent of drawing attention to your genitals when exposing them. It does not require them to prove, however, that anyone actually saw them. For example, imagine a man who opens his jacket to expose his bare genitals to a woman in a dark street – if she turns her head and runs away in the opposite direction and doesn’t actually see the man’s genitals, he would still be guilty because his intention was to expose them and draw public (her) attention to them.
On the other hand, the courts have held that if someone goes to a public beach to sunbathe and, if no one is around, takes all their clothes off and falls asleep while nude, they are not guilty of an offense – even if other people later come to the beach and see them. This is because the nude sunbather is not intending to draw public attention to their genitals in any way.
For the purpose of sexual gratification, or to sexually offend
The other specific intent that the Prosecutor must prove to establish a charge of indecent exposure is that you had the intent of sexually gratifying yourself or someone else, or of sexually offending someone else, when you exposed your genitals. This means that exposing yourself is not enough – you had to have done it with this intent.
Take, for instance, a man who urinates on a public street in front of someone’s house, exposing his penis when he does so. If he is motivated to do this to offend the owner of the house – but by the act of urination and in a non-sexual way – then he would not be guilty of the offense of indecent exposure. On the other hand, if a man stands out the front of someone’s house and masturbates with the intent of sexually offending the person inside, he would be guilty of the offense, even if the person inside the house did not see him.
LEWD CONDUCT IN PUBLIC QUESTIONS AND ANSWERS
The offenses of ‘lewd conduct in a public place’ and ‘indecent exposure’ prohibit certain behaviors in public places, or within view of public places. Sexual activity in a public place in California is not, by itself, illegal – but if you knew, or reasonably should have known, that someone was present who might see and be offended by your conduct, then the behavior can be considered ‘lewd conduct in a public place’. As for public nudity, it will not necessarily lead to a charge of indecent exposure in California – what makes that kind of activity ‘indecent’ is when it is done with a desire to either sexually gratify oneself or to offend another person.
How Serious is the Charge of Lewd Conduct in Public?
A charge of lewd conduct or indecent exposure might not seem very serious but the consequences can be devastating – including time in prison and lifetime registration as a sex offender. In the past, these offenses were usually seen as a kind of ‘nuisance’ offense, and sex offender registration was rarely an issue. However, with so much hysteria surrounding sex offenses today, these matters have been drawn into that category – when they are not in the same league at all. Judges and District Attorneys usually push hard for charges where sex offender legislation applies – even on a first offense. This means that these charges cannot be taken lightly and you need the best representation possible.
What is Lewd Conduct in Public?
It is an offense under California Penal Code 647(a) to engage in ‘lewd or dissolute conduct’ in a public place, or in a place that is open to the public or exposed to public view. ‘Lewd or dissolute’ conduct means that you touch your private parts, or someone else’s, and you do so for your own sexual gratification or to offend someone else. It is also considered lewd conduct to ‘solicit’ someone else to engage in this kind of behavior – which simply means that you ask or encourage someone else to commit the offense.
The law in this area is fairly vague, which means that it can cover behavior that might not be thought of as serious enough to warrant criminal charges in this day and age. For example, if a woman ‘flashes’ her breasts at her boyfriend in a crowded bar, and her intention is to sexually excite herself or her boyfriend, then she could be charged with committing a lewd act in a public place. It would also be an offense for a man in a car to flash his buttocks – usually referred to as ‘mooning’ – at a lady driving another car with the intention of offending her. Nevertheless, this is a serious charge with potentially serious consequences.
Is Lewd Conduct in Public a Felony or a Misdemeanor?
In California, lewd conduct in public is a misdemeanor.
If you are charged with Penal Code 647(a) lewd conduct, it means that you are accused of an offense of ‘disorderly conduct’ – in this case, engaging in lewd conduct in a public place – which is a misdemeanor. The possible penalties for a misdemeanor are lower than for a felony, and can be reduced substantially with the assistance of an experienced lawyer.
The consequences of a solicitation or prostitution charge, if not handled properly, can be severely damaging to your reputation.
The Law Offices of Nicola Fitzgerald believes strongly that these are victimless offenses and we have developed effective strategies that protect your clean record.
What is prostitution and solicitation?
Engaging in an act of prostitution is a crime under Penal Code 647(b) in California.
This means that it is illegal to engage in sexual intercourse or a lewd act with someone else in exchange for money, or some other form of compensation. It is also an offense to agree to engage in an act of prostitution – even if the act never happens – or to solicit another person to engage in an act of prostitution. So, the law covers many different situations, including things such as:
- Paying someone to have sex with them;
- Offering someone drugs in exchange for oral sex;
- A woman agreeing with a man that he can pay her $50 to fondle her bare breasts; and
- Responding to an online advertisement to set up a paid sexual encounter.
A conviction for this kind of offense on your record can damage your chances of employment, and can pose immigration issues for non-citizens. We do not want one moment of indiscretion to affect the rest of your life – which is why we always work to keep these matters off our client’s records. An accusation that you have engaged in any kind of prostitution or solicitation offense is serious, and could result in serious penalties – if you are facing charges you should contact The Law Offices of Nicola Fitzgerald immediately to discuss your options to fight the charges.
Can I settle this out of court?
Yes – it might be possible for us to settle your matter out of court. How we can assist you will depend on what stage your case it at, and the exact nature of the accusations against you – but whatever the case, our goal is always the full dismissal of all charges against you.
In prostitution and solicitation cases, we are often able to avoid having charges filed at all. And in cases where the evidence against our client is strong or the Prosecutor is not willing to let the matter go completely, there is still usually scope to have less serious charges filed or to achieve an outcome that will not result in a permanent conviction.
How can a criminal defense attorney help me?
Your best chance of fighting the case against you is by having an experienced criminal defense lawyer on your side. The Law Offices of Nicola Fitzgerald has successfully resolved many cases of prostitution and solicitation that never saw the inside of a courtroom.
It is important to contact a lawyer as soon as you have been contacted by the authorities because there will be opportunities to settle or negotiate your case at the start that won’t exist later. Furthermore, if you are not a US citizen, these kinds of offenses can raise immigration issues – which is why we will fight to keep a conviction from being recorded against you.
Who can be charged with solicitation and prostitution offenses?
It is important to remember that both the person accused of prostitution and the client (sometimes referred to as the ‘john’) can be charged with these offenses. Solicitation and prostitution offenses apply to anyone who is involved in the transaction, or the attempted transaction.
So, for example, if a male customer approaches the owner of a massage parlor and offers to pay extra if one of the women working there gives him a ‘happy ending’ and both the owner and the female worker agree to it, then all three of them – the customer, the owner, and the worker – are guilty of prostitution and solicitation offenses.
How do people usually get caught committing prostitution and solicitation offenses?
The most common way that someone is caught committing one of these offenses is by an undercover police officer – either online, or when police conduct operations in areas that are well-known beats for sex workers.
There are several popular websites that are well known for being used by people who engage in sex work. In order to catch people who are using those sites to either advertise their services as prostitutes or to find prostitutes, the police will commonly respond to existing ads, or they will place ads and correspond with people who respond to them.
For example, the police place an ad that says a woman is available to provide certain sexual services in local hotels. A man responds to the ad, and via an exchange of emails, agrees to meet her at a hotel and pay her $200 to have sex with him. When the man arrives at the hotel room at the pre-arranged time, he is arrested by the police and charged with solicitation.
Undercover sting operations
The police know the streets and areas where prostitutes operate, and they often conduct undercover sting operations in those locations. They may have an officer pose as a prostitute to catch people who proposition them or they might pose as ‘johns’ in order to catch out people who are working as prostitutes. At other times, they may conduct surveillance of those areas to catch people. In some cases, they may have information that a particular business – such as a massage parlor – is being used as a brothel. In those cases they will pose as customers of the business and arrest anyone who is engaged in illegal activity on the premises.
If I’m arrested, will I go to jail?
No, probably not – it is extremely unlikely that anyone who is charged with a prostitution or solicitation offense will go into custody. In these kinds of cases, the usual course is for the police to arrest an accused person, take them through the booking process at the police station, and the release them with a citation that requires them to appear in court in the future. In some situations, you might not be taken back to the police station – for example, when police are conducting sting operations they might have a van set up where people can be processed on the spot.
Are solicitation and prostitution offenses felonies or misdemeanors?
In California, solicitation and prostitution offenses are misdemeanors. The possible penalties for a misdemeanor are lower than for a felony, and can be reduced substantially with the assistance of one of our experienced lawyers.
An important factor to keep in mind with these charges is that the law specifies that the punishment must become more serious with each offense. So if you have ever committed one of the specified prostitution or solicitation offenses before, the penalty that you face on a second or subsequent conviction will be higher – and will include a minimum amount of time in a county jail.
What should I say to the police?
Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact The Law Offices of Nicola Fitzgerald immediately.
When you are arrested, the police are required to tell you about your rights which as you probably already know includes your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them.
Being charged and going through the arrest process can be scary and intimidating, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. The Law Offices of Nicola Fitzgerald has defended many cases and it has never, ever helped someone when they’ve spoken to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney is by far your most effective defense strategy.
In rape cases, false allegations are very common. These situations are often a case of he said/she said and consequently they are difficult to prove. Early and aggressive investigation can and does result in dismissal before trial or even before charges are filed.
Statutory Rape Information
What is statutory rape?
The crime of an adult having sex with a minor, which is commonly called Statutory Rape or underage sex, involves traditional common sense policy in addition to the government drawing certain lines in the sand. In essence the law states there are certain circumstances where someone is not able – no matter how willing or mature they feel – to consent to having sex. Generally, in lawyer-speak, we say that the under-age victim “lacked the capacity” to agree or consent to having sex.
What is the California Age of consent?
In California the age when one can legally consent to sex is 18. The penalties for statutory rape can become more severe depending upon the age differential between the alleged victim and accused.
Is it still statutory rape if the minor consented to sex?
One of the more frequently asked questions about the law involves the minor victim’s willingness to engage in sex. Because of the capacity concept discussed above, it is never a defense to statutory rape that someone under age “made advances” or asked to have sex or “made the first move” or that he or she was “mature beyond her years”. Even so, it may be helpful for your defense attorney to be aware of these factors. In other words, unlike other sexual assault and rape statutes where an adult is the victim, it is not enough that a minor acts “freely” and “voluntarily” and “has knowledge of the nature of the act or transaction involved” (See PC Section 261.6)
California Penal Code 261: California’s Rape Law
If one reviews the statute for Rape, (PC Section 261) you begin to understand that lacking capacity is a universal theme. Rape involves sex without consent and the law includes lack of consent due to “mental disorder, developmental or physical ability, threat of duress, fear of injury” and also, roughly speaking, through drugging, during sleep or unconsciousness, through concealment of identity such as leading the victim to think the defendant was the victim’s husband, etc.
Statutory Rape as defined in the West legal dictionary is “sexual intercourse with a female below the legal age of consent, but above the age of a child, even if the female gave her consent, did not resist and/or mutually participated.”
The legal age of consent is different in each state, but in California it is 18. Unlike the better understood crime of forcible rape, where there is not consent between the partners, statutory rape can occur even between two loving partners. It can even occur between two partners who are both under 18.
Statutory rape is a crime simply because the minor is not is considered to be able to consent to an adult activity.
While teens and young adults may consider statutory rape to be an outmoded or old fashioned idea, Bay Area prosecutors can and do charge teens with this crime – especially when the crime involves a three year age difference. At The Law Offices of Nicola Fitzgerald we defend these charges vigorously because if they are not properly defended, statutory rape penalties can lead to jail time and a permanent criminal record.
Many consider photographs by teens of private parts to be a problem best handled by discretion, increased parent supervision and discipline. However, to many people’s surprise and shock, anyone – even innocent teens who are testing their boundaries and take suggestive photos can be subject to serious state prosecution.
This form of high-tech flirting is known as “sexting” and the term refers specifically to to the sexual messages and naked pictures that kids are taking on their smartphones and then transmitting to their girlfriends or boyfriends. Anyone (even kids) who “sexts” images of naked or partially naked minors is subject to prosecution for violating California child pornography laws.