California has two lewd conduct laws. One, found in Penal Code Section 647(a), focuses on lewd conduct in public. The second, found in Penal Code Section 288, criminalizes lewd acts with minors. The term lewd carries with it the implication of sexual conduct, and both laws describe touching done with sexual intent.
Lewd Conduct in California: Penal Code 647(a)
California's Penal Code Section 647 sets out the crime of disorderly conduct. Subsection (a) of that law describes one category of persons who can be charged with disorderly conduct: those engaged in "lewd or dissolute conduct" in a public place.
The elements of a crime are those facts that a district attorney must prove to a jury before she can get a conviction. For PC 647(a), those elements are:
- The defendant intentionally touched his own private parts or someone else's private parts.
The defendant did that act intending to arouse or gratify himself sexually or to offend or annoy someone else.
The defendant did the act in a public place, a place that was open to the public or a place within view of the public.
- When the defendant acted, a third party was present who might have been offended.
- The defendant was aware of the presence of the person likely to be offended by the conduct.
Lewd or Dissolute Conduct
The act itself is the touching of private parts. This means the person touched her own genitals, buttocks or breasts or touched another person's genitals, buttocks or breasts.
California courts have read the requirement of intent into the definition of a lewd act. The person doing the act must touch private parts for a sexual purpose, and the prosecutor must prove this intent in order to convict.
Public Place or Place Exposed to Public View
The lewd or dissolute conduct described in Penal Code 647(a) must occur in a public place, a place open to the public or a place exposed to public view. Public place is defined broadly by California courts to include more than just public parks or buildings owned by a city, county or state. For example, masturbating in a car on a city street is lewd conduct in a public place, but so is such conduct in a private movie booth, at an adult bookstore or in a "massage" parlor.
On the other hand, a private home is not public, nor is a motel room, but these may move into the public category if the blinds are left up so that inside activities are exposed to public view.
Third Party Offended by Conduct
It is easy to think that Penal Code 647(a) prohibits sexual acts in public, but that is actually not the statute's intent. Sex and sexual activity in public are not crimes in California, nor are they the focus of PC 647(a). Instead, the intent of the statute is to protect people who are in a public space from having to look at sexual conduct of others.
That is why to convict under this statute, the defendant must know that someone was likely to be nearby and to be offended by the conduct. The California Supreme Court affirmed that the offense is based on lewd conduct that offends others, not simply lewd conduct by itself.
Penal Code Section 647(a) Penalties
The crime of lewd conduct under Penal Code 647(a) is a misdemeanor offense, not a felony offense. Misdemeanors are defined in California as crimes carrying a maximum jail term of one year; anything with a higher penalty is a felony. The maximum potential punishment for a violation of PC 647(a) misdemeanor is six months in county jail and/or a fine of $1,000.
Often, an individual convicted of lewd conduct in California will be sentenced to misdemeanor probation, or informal probation, instead of a jail term. That may also include fines, counseling or STD testing. The individual will not have to register as a sex offender.
Lewd Acts With a Minor: Penal Code Section 288
The other California lewd conduct law is Penal Code Section 288, which addresses lewd acts with a minor; most of the statute focuses on lewd conduct with a child under the age of 14 years old. It is a felony offense. This crime is committed when an individual commits a "lewd or lascivious act" with a child. The requisite intent is spelled out in the statute.
The provision makes it a felony for an individual to commit any lewd or lascivious act, upon or with the body of a child under the age of 14 years, with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of that person or the child. To commit this felony, an individual must touch the child's body or direct the child to touch his body for sexual purposes. The touching must be done for sexual gratification.
Penal Code Section 288 Penalties
A large range of penalties are set out for violations of PC 288. For acts with children age 14 or younger, penalties start at three years in jail and go up to life in prison. Fines can be up to $10,000. The particular punishment depends on the circumstances of the crime. These include how old the victim was, how much older the perpetrator was than the victim, and whether force was used.
When the victim is under 14, and the perpetrator uses force to do the lewd act, the offense carries up to 10 years in state prison and the maximum fine of $10,000. If force was not used, the maximum prison sentence is eight years, but the fine remains the same. If the child suffers bodily harm, a conviction can carry a sentence of life in prison.
On the other hand, when the victim is a child 14 or 15 years old, and the perpetrator is at least 10 years older than the victim, the penalty can be up to three years in state prison and a fine of $10,000. In some cases this is charged as a misdemeanor, with a maximum penalty of a year in county jail and a maximum fine of $1,000. If the child is 16 or 17, the crime charged is usually sexual battery or statutory rape, not an offense under PC 288.
Sex Offender Registration
Registering as a sex offender may sound less serious than a hefty fine or jail sentence. But in some ways it is a more devastating punishment because, as of this point in time, it is a designation that lasts a lifetime. That means that anyone convicted of a violation under Penal Code Section 288 must register as a sex offender, and that is a designation he will carry for life.
In the future, that could change. Under California law, as of 2021, sex offenders will be separated into three tiers based on the severity of their offenses. Tier 1 offenders will have to register for 10 years, Tier 2 offenders for 20 years and Tier 3 offenders for life. However, someone convicted of a violation of PC 288 will not be eligible for Tier 1. That is, first-time offenders will be Tier 2 offenders, while any subsequent offenses will be Tier 3.
And that isn't all. Someone who holds a professional license, like a medical license or a license to practice law, and is convicted of PC 288, will lose the chance to work in that field. It is also probable that the person will forfeit the right to own a gun in California.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.