What Does the Prosecution have to Prove in Order to Convict a Defendant of Showing or Sending Harmful Material to Seduce a Minor in Violation of California Penal Code Section 288.2(a) and (b)?

By: Wallin & Klarich

In California, it is a crime to send harmful material to a minor in an attempt to seduce that minor. A minor in California is anyone who is under the age of 18. California Penal Code Section 288.2(a) provides that every person who, with knowledge that a person is a minor, knowingly sends any harmful matter to a minor with the intent of seducing the minor is guilty of a public offense. Section 288.2(b) makes it a California lewd acts with a minor crime to distribute harmful material over the internet or other forms of electronic media.

To prove that the defendant is guilty of sending harmful material to seduce a minor, the prosecution must prove that:

  1. The defendant showed, sent, caused to be sent, distributed, or offered to show or distribute harmful material to a minor [by electronic mail, the Internet, or a commercial online service];
  2. When the defendant acted, (he/she) knew the character of the material;
  3. When the defendant acted, (he/she) (knew the other person was a minor or failed to use reasonable care to determine the minor’s actual age;
  4. When the defendant acted, (he/she) intended to sexually arouse, appeal to, or gratify the lust, passions, or sexual desires of (himself/herself) or of the minor;
  5. AND

  6. When the defendant acted, (he/she) intended to seduce the minor;
  7. AND

  8. When the defendant acted, (he/she) intended to show or distribute the material to the minor.

There are two statutory defenses to a charge of distributing harmful material to a minor. First, a parent or guardian is not guilty of this offense if he or she acted to promote legitimate sex education. Second, the defendant is not guilty of this crime if (he/she) was engaging in legitimate scientific or educational activities. The prosecution has the burden of proving beyond a reasonable doubt that the defendant was not acting to promote legitimate sex education or for a legitimate scientific or educational purpose.

In the age of the internet, it is extremely easy to be charged with a violation of Penal Code Section 288.2(a) and (b). All it takes is for the wrong email address to be included in an email meant for adult eyes. For this reason, it is important to hire an experienced sex crimes San Diego defense attorney from Wallin & Klarich. Our attorneys have over 30 years of experience handling sex crimes. Our attorneys have the skills and expertise to provide you with the best possible defense. If you or a loved one has been charged with a violation of Section 288.2, call us at (888) 280-6839 or visit us on our website at www.wklaw.com. We will be there when you call.

Posted In: Criminal Defense