Lewd Acts by a Caretaker upon a Dependent, in Violation of California Penal Code Section 288(b)(2)

California Penal Code Section 288(b)(2) addresses a particularly complex and sensitive area of the law: lewd acts by a caretaker upon a dependent. A key aspect of this sex crime statute is the definition of “lewd acts,” which involves any willful conduct carried out with the intent to satisfy sexual desires, either of the defendant or another person. These acts encompass inappropriate touching, fondling, or any sexual behavior that would be considered offensive or indecent.

Unlike Penal Code section 288(a), where the victim must be a child under 14 years of age, this section focuses on criminalizing behavior not necessarily based upon the age of the victim, but rather based upon the type of relationship between the victim and the defendant. This section punishes a person who engages in lewd acts with a dependent individual under their care because the dependent person is particularly vulnerable to being exploited and abused within a caretaker relationship and is unable to give legal consent due to a mental or physical condition. Section 288(b)(2) encompasses a broad spectrum of caretaker roles, which include, but are not limited to: 

Parents or Legal Guardians: Those who have a legal responsibility for the care and well-being of a dependent child individual fall within the scope of this statute. 

Nursing Home Staff: Employees of nursing homes, assisted living facilities, and similar institutions can be considered caretakers if they engage in lewd acts with a dependent resident.

In-Home Care Providers: Individuals hired to provide care within the dependent person's own home are also subject to this statute if they commit lewd acts with their vulnerable charge. 

Teachers and Educators: Professionals responsible for the well-being of students or individuals with special needs can be charged under this statute if they engage in lewd acts with their dependent students or individuals. 

Also included in the statute as caretakers are owners, operators, employees, agents, or volunteers at: health facilities, clinics, shelters, day cares, camps, foster homes, and boarding schools.

A felony conviction under section 288(b)(2) carries serious consequences, including five, eight, or ten years in state prison and a maximum fine of $10,000. 

In addition to prison time and fines, a conviction under Section 288(b)(2) carries the requirement of mandatory sex offender registration. In California, individuals convicted of lewd acts on a child must register as a sex offender for life.

This crime carries with it the potential for a creative defense strategy, such as: 

Lack of Intent: One defense strategy involves demonstrating that the defendant did not willfully engage in the alleged lewd act or did not have the intent to satisfy sexual desires. 

Consent: In some cases, the defendant might argue that the dependent individual was capable of giving legal consent, even if they have a mental or physical condition. This defense requires careful examination of the individual's cognitive abilities. 

False Accusations or Mistaken Identity: In some cases, false accusations or mistaken identity can lead to wrongful charges. Any inconsistencies in the complaining witness’s testimony or otherwise unreliable evidence can be capitalized upon. 

Coerced Confessions or Improper Police Procedures: If the defendant confessed to the crime, that confession may be suppressed at a motion to suppress if an attorney can demonstrate that the defendant's confession was coerced or obtained through improper police procedures, such as a failure to read Miranda rights. 

If you have been charged with committing a lewd act upon a dependent, it is critical that you discuss your case immediately with a knowledgeable and aggressive criminal defense attorney as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has extensive experience defending clients who are accused of this type of sex crime and has successfully petitioned for clients to be removed from the sex offender registry. 

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.