Key Differences Between Statutory Rape and Lewd Acts with a Minor (PC 261.5 and PC 288)

In some cases, the crimes of statutory rape and lewd or lascivious acts involving a minor could seem interchangeable. Both crimes involve sexual activity with a person under the age of 18. However, there are significant differences between these two crimes.

Let’s explore the differences between statutory rape and lewd acts with a minor.

Statutory Rape (PC 261.5) vs Lewd or Lascivious Act with a Child (PC 288)

Under PC 261.5, statutory rape is committed when you engage in sexual intercourse with someone who is under the age of 18 and you are not married to that person.

It is important to note that this crime can be committed by both minors and adults. In fact, when two minors have sex, both could face statutory rape charges.

The term “sexual intercourse” is defined as “any penetration, no matter how slight, of the vagina or genitalia by the penis.” To obtain a conviction, the prosecution is not required to prove the intercourse was accomplished by means of force, fear or fraud.

Under PC 288, a lewd or lascivious act with a child occurs when you willfully touch any part of a child's body, or willfully cause a child to touch his or her own body, your body, or another person's body. To be convicted, it must be proven that you committed the act with the intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of yourself or the alleged victim.

Unlike statutory rape, the alleged victim must be under the age of 14 to be convicted under PC 288 (or 14 or 15 years old if you were at least 10 years older than the child at the time of the alleged act).

Lewd acts do not require penetration. This crime is committed merely by touching the alleged victim (or causing them to touch you or another person), and the touch need not be on the alleged victim’s bare skin.

Punishment for Statutory Rape

The punishment for statutory rape is based on the difference in age between the victim and the defendant.

• If you are no more than three years older than the alleged victim, the crime is a misdemeanor, and is punishable by up to 364 days in county jail and fines of up to $1,000.
• If you are more than three years older than the alleged victim, the crime can be charged as either a misdemeanor or a felony. A felony carries 16 months or 2 or 3 years in prison and a $10,000 fine. A misdemeanor carries up to 364 days in jail and fines of up to $1,000.
• If you were at least 21 years old and the victim was under the age of 16, the crime can be charged as a misdemeanor or a felony. A felony in this case carries 2, 3 or 4 years in prison and fines of up to $10,000. A misdemeanor is punishable by up to 364 days in jail and $1,000 in fines.

Punishment for Lewd or Lascivious Act with a Child (PC 288)

Lewd or lascivious acts involving a minor is a felony offense. If you are convicted of this crime under California Penal Code Section 288(a), you face up to eight years in state prison and fines of up to $10,000.

If you are convicted of lewd acts upon a minor under PC 288(b), which means you accomplished the crime through the use of force, violence, duress or fear, you face up to 10 years in prison and fines of up to $10,000.

If the minor was 14 or 15 at the time of the offense and you were at least 10 years older than the minor, you could be charged with either a misdemeanor or a felony. Misdemeanors carry a sentence of up to 364 days in county jail, while felonies under these circumstances carry a sentence of up to three years in state prison.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

If you are charged with statutory rape or lewd acts with a minor, it is crucial that you speak to an experienced criminal defense attorney immediately. At Wallin & Klarich, our skilled criminal lawyers have been successfully defending clients facing serious sex crimes for more than 40 years. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich sex crimes defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.