To commit this crime, a defendant must touch a child under the age of 14 for the purpose of arousing himself or the child. The touching does not need to be any particular part of the body of the child or of the defendant. The touching can be through clothing, and in fact, may simply be instructing the child to touch him/herself. Touching of sexual organs is not required, nor is it required that skin be directly touched. Thus, rubbing against a child, fully clothed, or through blankets while the child sleeps, will suffice for a conviction of this crime if the prosecution can establish beyond a reasonable doubt that the touching was done for sexual gratification.
This is a felony that carries up to 8 years in State Prison and a fine of up to $10,000. If force or fear is used, the penalty increases to up to 10 years.
It is not necessary that any sexual gratification was achieved. The key is the purpose of the touching. If the D.A. can establish that the reason for any touching of a child was sexual, a prosecution will surely follow. If sexual gratification happens during touching for another purpose, however, such as a friendly hug or a game requiring physical contact, this crime has not occurred.
As with most sexual assault crimes, cases such as these are often a matter of proof. This is because the victim is usually the only witness to the touching the prosecution has. In such a case there will be an intensive investigation by law enforcement in order to find some corroborating evidence in order to arrest and prosecute. Relying entirely on the testimony of a child puts the prosecution in a difficult position because a criminal defendant has a constitutional right to cross examine any witness against him. Statements of the child reported to law enforcement, or even by a civilian witness, are often useless because of this rule. So if a child accuses an adult of improperly touching him or her, the adult may be hounded for years by detectives in an attempt to get some kind of admission, or any other evidence that a touching occurred and that it was sexual in nature.
The crime becomes a wobbler (punishable as a felony or misdemeanor) if the victim is 14-15 years old, and the defendant is at least ten years older than the victim. Punishment is a year in jail for the misdemeanor, or up to three years for the felony.
The penalty increases substantially if “bodily harm” is inflicted upon the child to life in prison, with a possibility of parole after seven years. Bodily harm is a “substantial physical injury.”
Consent of the minor is no defense. Neither is mistake as to the minor’s age. This is a strict liability crime like statutory rape.
A conviction of this will require lifetime registration as a sex offender. This is a national database, accessible by anyone, and requires registering your current home address.
A conviction will also require segregation from the general prison population in order to avoid what will be certain harm from other inmates.
If you have been charged with, or are being investigated for this crime, do not speak to anyone about the facts of the case, especially law enforcement, regardless of your guilt or innocence. Misunderstandings become inconsistencies which will then become proof of your lying and therefore guilt.
Links to Information for Anyone Charged with a Crime: