San Diego Child Molestation Lawyer
Child Molestation in San Diego
There are different types of charges for child molestation under Penal Code 288, which solely depends on the age of the child at the time of the alleged conduct, occurred. Child Molestation is any sexual abuse that occurs with a child under the age of 18 years old. The seriousness of the case will depend on how young the child is at the time of the alleged conduct. The most serious cases are when the child is Ten Years Old or Younger.
Attorney Vik Monder has handled all types of sex crime cases, from statutory rape to the most serious child molestation cases throughout San Diego County, to the less serious molestation cases where the age gap between the alleged victim and defendant is not as far apart. It is important to consult with a child molestation specialist who handles these cases throughout San Diego County.
Sex with a Child Ten Years of Age or Younger
Sex with a child ten years of age or younger is one of the most serious crimes one can commit. This can have an extremely harsh punishment along with the stigma in one’s personal and professional life. The law states that,
It is a felony for any person who is 18 years old or older to engage in sexual intercourse or sodomy with a child who is 10 years old or younger. (B) It is a felony for any person who is 18 years old or older to engage in oral copulation or sexual penetration, as defined in Penal Code Section 289, with a child who is 10 years old or younger.
California Penal Code Section 288.7(a)(b). We are going to look at the what exactly qualifies as sex with a child, we will do this by looking at the law above and breaking it down further to see what the prosecution would have to prove to convict someone. In addition, we will look at some of the possible defenses that a professional attorney may be able to use to combat one’s charges. Furthermore, we will look at the possible penalties that may be applied to a conviction of this offense. Lastly, we will look to see if there are any mitigating factors that may be able to reduce one’s punishment if they are convicted of sex with a child. Thus, we will map out the law that is applicable to sex with a child ten years of age or younger.
Understanding the Elements of a Child Molestation Charge in San Diego
We will look at in depth all of the elements that the prosecution will have to prove in order to convict one sex with a child. There are three applicable elements to the charge. The first being the person charged engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration with the child. The second is when the person charged did so, the child was ten years of age or younger. The last element is at the time of the act, the one charged was at least 18 years old. The prosecution has to prove all three of these elements above beyond a reasonable doubt in order for one to be found guilty of sex with a child ten years old or younger. The first element is the most complex and we will spend the most time on it because element two and three really only deal with the age of the alleged victim and the alleged defendant. Therefore, we will break down all three applicable elements to the crime presented.
A. The first element to sex with a child ten years old or younger is the person charged engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration with the child.
The first element to sex with a child ten years old or younger is the person charged engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration with the child. We will break down and define the key terms of the first element so there is a clear understanding of the crime and what act fulfills the element. We will first look at sexual intercourse, sodomy, then oral copulation, sexual penetration. In addition, to the terms outlined in the rule, we will also address foreign objects. Only one of these acts must be completed in order to be charged with this crime. Thus, the first element will be broken down and defined further.
The first act we are going to look at is sexual intercourse. Sexual intercourse is outlined for us as sexual intercourse is the penetration of the vagina by the penis, however slight the penetration is. Ejaculation is not required to meet the definition of sexual intercourse. CALCRIM 1127. An important note is that the law states that the slightest of penetration would qualify as fulfilling this crime. Furthermore, if one is about to engage in the act and does not fully penetrate before someone stops them or they have a change of heart it is regardless because the first element of the crime is already meant based on the “slight” act. This is outlined in § 288.7 (a). Therefore, sexual intercourse is an act that would fulfill the first element of the crime.
The next term defined will be sodomy. Sodomy is defined as sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. CALCRIM 1127. As stated above it should be noted again that ejaculation is not required. This is outlined in § 288.7 (a). Thus, sodomy will qualify as the act for the first element of sex with a child 10 years or younger.
The next term in the first element is “oral copulation.” Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required. CALCRIM 1127. The important point of this act that there does not have to be any penetration in order to qualify as oral copulation. It is a misjudgment to think penetration is required to be charged with this crime. Once again ejaculation is not needed to have complete this act. This is outlined in § 288.7(b). Therefore, oral copulation is applicable to complete the first element.
Next, we will look at the term sexual penetration and define it and see what the states it as. This is the broadest of the terms that have been looked at. Sexual penetration is the act of penetration, however slight, of the genital or anal opening of the child by any foreign object, substance, instrument, device, or any unknown object for the purpose of sexual abuse, arousal, or gratification. The definition also includes causing the child to sexually penetrate the genital or anal opening of the defendant or another person, or to cause the child to sexually penetrate his or her own genital or anal opening. CALCRIM 1128. This act encompasses a lot of different things. The important thing to note is that any of these acts outlined in the law above are committed than the element would be fulfilled. We can see that the acts can all be done to the alleged victim or not. It is very versatile, it all rest upon penetration, so if penetration is present in any way this would qualify under this rule. This is relevant to § 288.7(b). Therefore, sexual penetration is a broad crime that will qualify under the first element.
Lastly, we are going talk about foreign objects. Foreign objects are not directly listed in the rule but under sexual penetration, it is brought up. The foreign object includes any object or part of the body except for a sexual organ. CALCRIM 1128. This does not include a sexual organ because then it would be sexual intercourse, however, it includes other body parts. But this definition shows us that it can include anything. This is also pretty broad. Therefore, when we look to sexual penetration a foreign object can include essentially anything.
Thus, the first element to sex with a child 10 years or younger is the person charged engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration with the child.
B. The second element of the crime is when the person charged completed the first element, the child was ten years of age or younger.
The second element of the crime is when the person charged completed the first element, the child was ten years of age or younger. This is what is known as an attended circumstance. For one to be charged with this crime the alleged victim must be 10 years old or younger. If the alleged victim was 11 years old then this charge is not applicable there would be a whole other different charge. It is pretty simple for when it comes to elements it is just concerning the age of the alleged victim. Thus, the alleged victim must have been 10 years old or younger when the act took place.
C. The last element the prosecution must prove is at the time of the act, the one charged was at least 18 years old.
The last element the prosecution must prove is at the time of the act, the one charged was at least 18 years old. This is very similar to the second element, it is also an attended circumstance stating the person charged must have been 18 or older when the crime took place. If one was 17 then turn 18 when they were charged this crime would not be applicable. Essentially it is a necessity that the one charged with the crime was 18 years of age or older when the alleged act occurred. Therefore, the one charged had to be at least 218 years old at the time of the act.
Thus, the rule for sex with a child 10 years or younger is the person charged engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration with the child, and when the person charged completed the first element, the child was ten years of age or younger, and at the time of the act, the one charged was at least 18 years old.
Understanding the Defenses to a Child Molestation Charge in San Diego
If one is charged with sex with a child there are some possible defenses that may be applicable the situation. This crime is different from most because there is mental state required to be convicted, so a lack of intent would not act as a defense. In addition, one cannot argue that the alleged victim consented, because of the young age they cannot consent. One possible defense is that the alleged victim is lying. Another possible defense is that that there is a possibility of mistaken identity. The last defense we will discuss is that the alleged victim was manipulated by another to bring about the charge. Thus, there are some possible defenses that may be applicable to one accused of this crime.
A. The first possible defense is that the alleged victim is lying, and the crime never happened.
The first possible defense is that the alleged victim is lying, and the crime never happened. It is in the possibilities that sometimes children get upset with an adult because they did not allow them to do something they wanted to or something of that nature. Because the child may be upset with the adult they may accuse them of a crime which was never committed. With a professional defense attorney asking the right questions, they may be able to shed light on the truth of what really happened, and be able to show that there is a flaw in the story which the alleged victim is claiming. Thus, if the child is lying and the crime was not committed that would be a possible defense for one who was charged with the crime.
B. In addition, another possible defense is that there is a case of mistaken identity and the one charged did not commit the crime, even though the crime happened.
In addition, another possible defense is that there is a case of mistaken identity and the one charged did not commit the crime, even though the crime happened. It is possible that there was another who did the crime but the child was confused and thought it was the person charged. Children are impressionable and may not fully understand the situation and may be confused about the entire ordeal and claim it was the wrong person. For example, it could have taken place at night in a dark room. The proper defense attorney may be able to show that it was impossible to be the person charged or through investigation show that something does not add up to the claim. Therefore, mistaken identity may be a defense in certain situations.
C. The last defenses discussed is that the alleged victim was manipulated by another to make the accusations against the one charged.
The last defenses discussed is that the alleged victim was manipulated by another to make the accusations against the one charged. It is a sad reality that others may use this charge to get an innocent person into trouble. An example could be a third party looking to make money from a daycare so they have their child claim these charges, or there is a nasty divorce occurring and one parent has the child make accusations against the other. There are different possibilities, but coaching the victim may be a defense in certain situations. Thus, showing child manipulation may be a defense to one’s certain situation.
In conclusion, even if one is charged with sex with a child there are some possibilities of defenses that may be applicable to one’s case.
Understanding the Punishment if Convicted of a Child Molestation Charge in San Diego
The punishment can differ depending on the crime one is charged with. It matters about the specific act one allegedly committed. Above we have combined California Penal Code § 288.7(a) and § 288.7(b), because they are very similar except in regard to the specific act. The punishments, however, are very different. Thus, we will discuss each one separately regarding the punishment.
First, we will look at. It matters about the specific act one allegedly committed. Above we have combined California Penal Code § 288.7(a). This applies to someone who is convicted of engages in sexual intercourse or sodomy with a child. The law states that the punishment for committing this crime is punished by imprisonment in state prison for 25 yeas to life. This is one of the heaviest punishments that is possible for one to receive. Thus, in regard to Penal Code § 288.7(a), it carries on of the most series punishments.
The punishment California Penal Code § 288.7(b) is different when it comes to the sentence. §288,7(b) applies to one who is convicted of engaging in oral copulation or sexual penetration of the victim. The punishment for this crime is imprisonment in state prison for 15 years to life. This is also a very serious punishment. Therefore, the punishment for § 288.7(b) is less than the one above but still a heavy punishment of 15 years to life.
Thus, the punishment for both is very serious felonies ranging from 15 or 25 years to life in state prison.
Understanding Mitigating Factors in a Child Molestation Charge in San Diego
There are really not any mitigating factors that are present with a sex with a child 10 years or younger charge. It is called a “one strike and you are out law.” However, there some possibilities a professional and experienced defense attorney may be able to argue, but those have to be tailored to each specific situation.
Hire a Lawyer that Specializes in Child Molestation in San Diego
The rule for sex with a child 10 years or younger or any age is the person charged engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration with the child, and when the person charged completed the first element, the child was ten years of age or younger, and at the time of the act, the one charged was at least 18 years old. Also, even if one is charged with sex with a child there are some possibilities of defenses that may be applicable to one’s case. The punishment for both is very serious felonies ranging from 15 or 25 years to life in state prison. Lastly, it is best to a professional defense attorney on your side that has a successful track record in getting these cases dismissed. Most of these cases if filed will be tried in front of a jury.
Hiring a competent trial lawyer will be the difference of you not spending the rest of your life in prison. Attorney Vik Monder has a masters degree in trial advocacy and has tailored his practice to handling the most serious child molestation cases in San Diego. There are only a handful of lawyers that have tried the most serious type of child molestation cases and Attorney Vik Monder should be at the top of your list.
