California Penal Code 288.2(a)(1): Harmful Matter Sent with the Intent to Seduce a Minor
Legal Definition: Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touches an intimate body part of the other is guilty under this section.PC 288.2(a)(2): If the matter used by the person is harmful matter but does not include a depiction or depictions of a minor or minors engaged in sexual conduct, the offense is punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for 16 months, or two or three years.
To secure a conviction under PC 288.2, the prosecution must present irrefutable evidence in support of the following elements:
- The accused knowingly perpetrated, exhibited, sent, distributed, or offered harmful material that depicts minors engaging in sexual conduct to another individual, through any means whatsoever. OR (Pursuant to PC 288.2(a)(2))
- The accused knowingly perpetrated, exhibited, sent, distributed, or offered harmful material to another individual, through any means whatsoever.
- At the time of the act, the accused possessed full knowledge of the explicit content conveyed by the material in question.
- At the time of the act, the accused either knew, should have known, or genuinely believed that the recipient was a minor.
- The accused intended to arouse, appeal to, or gratify their own or the recipient’s lust, passions, or sexual desires through the aforementioned material.
- The accused intended to engage in sexual intercourse, sodomy, or oral copulation with the recipient, or to engage in mutual intimate touching.
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What does this mean?
According to legal standards, material can be classified as harmful if it satisfies the following criteria:
- It portrays or describes sexual conduct in a blatantly offensive manner.
- A reasonable person would determine that it lacks significant literary, artistic, political, or scientific value for minors.
- By contemporary statewide standards, an average adult would find it appealing to prurient interest.
For the purpose of this section, intimate body parts encompass the sexual organ, anus, groin, or buttocks of an individual, as well as the breasts of a female. Prurient interest refers to an unhealthy or abnormal fascination with nudity, sex, or excretion. The mere depiction of nudity alone does not render material harmful; it must also involve sexual activity. Even if the material in question is deemed harmful, you may still be acquitted of the charge if no intent to seduce the minor can be established.
In this context, the act of seducing a minor refers to enticing the minor to engage in any of the aforementioned sexual acts that require physical contact between yourself and the minor.
PC 288.2 is a wobbler offense, meaning it can be charged as a misdemeanor or as a felony. Whether you are charged with the crime as a misdemeanor or as a felony is based on your criminal history and the specific facts of your case. If you have a prior conviction under this section, then any further charge would be an automatic felony. If you are to be found guilty under this section as a misdemeanor, you could be sentenced to up to six months in County Jail. If you are convicted under this section as a felony, you could be sentenced to upwards of 16 months, 2 or 3 years in State Prison. You would be required to serve 50% of that sentence. If you are convicted of this offense as a felony, you would be required to register as a Sex Offender under PC 290 for life as a Tier III offense. There is no registration required if you are convicted of this as a misdemeanor.
In some PC 288.2 cases, you may be able to avoid jail entirely and instead serve an alternative sentence. Alternative sentences include work release, which is commonly known as Community Service, or electronic monitoring, also known as House Arrest.
The crime of sending harmful matter to a minor under PC 288.2 is not considered a “strike” under California Three Strikes Law. It is also not considered a crime of moral turpitude. You could also be required to have your phones or computers seized and forfeited for sending the harmful matter.
- Statute of Limitations
- Insufficient Evidence
- Statute of Limitations
- Mistake of Fact
- False Accusations
- Coerced Confessions
It is not considered a violation under this section if a parent or guardian presented the matter for a legitimate sex education purpose for the minor. An additional valid defense is to demonstrate that the material was shared for a legitimate scientific or educational purpose. Furthermore, it is crucial to establish that there was no intention to entice the minor and that any involvement was an inadvertent mistake. It is noteworthy that in today’s society, many individuals capture nude photographs of themselves using their mobile devices. Regrettably, on occasion, these images are unintentionally distributed to others. In this scenario, where there was no intent to seduce a minor, and instead a regrettable error or lapse in judgment occurred, you would not be found guilty under this section.
Even the most prudent can falter, occasionally leading to actions we deeply regret. Engaging in inappropriate communication with a minor with seductive intentions can bear grave consequences, such as a lifelong sex offender registration. This can cast a long shadow on both personal and professional aspects of your life, with the repercussions extending well beyond sentence completion.
At Inland Empire Criminal Defense, our distinguished Ontario criminal defense attorney, an expert in PC 288.2 and Sex Crimes, has consistently secured favorable outcomes for numerous clients. Benefit from our free initial consultation and access our expertise 24/7. Reach out today at 909-281-0565 and be assured of comprehensive, empathetic, and expert legal representation.