I. California Penal Code 288.2(a)(1): Harmful Matter Sent with the Intent to Seduce a Minor

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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.

For a person to be convicted of a violation of PC 288.2, the prosecution must prove the following:

1A. You exhibited/sent/caused to be sent/distributed/offered to exhibit or distribute harmful material depicting a minor or minors engaging in sexual conduct to another person by any means;

OR (Under PC 288.2(a)(2))

1B. You exhibited/sent/ caused to be sent/distributed/offered to exhibit or distribute harmful material to another person by any means;

2. When you acted, you knew the character of the material that you sent;

3. When you acted, you knew or should have known, or believed that the other person was a minor;

4. When you acted, you intended to arouse, appeal to, or gratify the lust, passions, or sexual desires of yourself or of the other person;

AND

5. When you acted, you intended to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part of the other person.

II. What does this mean?

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Material is harmful if, when considered as a whole:

1. It shows or describes sexual conduct in an obviously offensive way;

2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors;

AND

3. An average adult person, applying contemporary statewide standards, would conclude it appeals to prurient interest.

An intimate body part under this section includes the sexual organ, anus, groin, or buttocks of any person or the breasts of a female. A prurient interest is a shameful or morbid interest in nudity, sex, or excretion. The depiction of nudity, by itself, does not make material harmful. In order for material containing nudity to be harmful, it must depict sexual activity. Even if the matter you sent was, in fact, harmful, you still must be acquitted of this charge if you didn’t intend to seduce the minor to that received it.

The intent of seducing that child means to entice the minor to engage in a sexual act described above, which involves physical contact between yourself and the minor.

III. Penalties

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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.

IV. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Statute of Limitations
4. Mistake of Fact
5. False Accusations
6. Coerced Confessions

It is not a crime under this section that a parent or guardian displayed the matter for a legitimate sex education purpose for the minor. Another common defense is that the matter was sent for a legitimate scientific or educational purpose. It is also a defense to show that you did not intend to seduce the minor, or that it was a mistake. Many people in today’s society take naked photos of themselves on their phones. And sometimes, those naked photos are sent to others by mistake. Here, you were not intending to seduce a minor, and simply made a poor mistake or a lapse of judgment. In that case, you would not be guilty under this section.

V. Call Today

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