Sex Crime

While it is fair to say that all crimes are serious matters, in California and virtually every other state and many countries around the world; crimes that involve a sexual component are considered to be especially serious. Due to that status, the California Penal Code imposes significantly harsher penalties for the commission of an entire class of crimes, which can generally be referred to as sex crimes. These penalties not only include significantly higher terms of jail and prison sentences, as compared to similar crimes that lack a sexual component; but they also can result in higher fines and various restrictions on the personal liberty of anyone convicted of one of these crimes. The most widely-known of these additional penalties is what is called sexual offender registration.

Sex crimes also have a societal aspect to them in that anyone convicted of a sex crime will often be subjected to a stigma, and can find themselves subjected to harassment, isolation, inability to secure employment and the perception that they are deviant and generally unwelcome, even after paying their so-called debt to society.

The actual number of different types of sex crimes can be staggering. There are literally dozens of different types of sex crimes that can be committed; each with its own elements and penalties to be faced upon conviction. The one thing, of course, that ties them all together, is that each has a sexual component to it. Most (but not all) are committed in the pursuit of sexual gratification that the general public, for good reason, has determined to be unacceptable.

What Counts as a Sex Crime in California:

While you can generally define a sex crime as any crime that contains a sexual component; the Penal Code is both detailed and methodical in its proscription of acts that the law deems to punishable as a sex crime. It does this so that the penalties imposed for a conviction can be enhanced as compared with similar, non-sexual crimes, including the requirement that a convict be required to register as a sex offender.

Below are brief descriptions of various sex crimes, prohibited and punished under the Penal Code. This is not an exhaustive list, but is merely illustrative of some of the types of sex crimes that are commonly prosecuted:

  • Statutory Rape - Prohibited by California Penal Code section 261.5, and more formally known as unlawful sex with a minor; statutory rape is the act of an adult (anyone age 18 or over) engaging in sexual intercourse with a member of the opposite sex who is under the age of 18. The term "statutory rape" comes from the fact that the law deems minors (again, anyone under the age of 18) to be incapable, as a matter of law, of consenting to sexual intercourse. Because of that legal inability, any adult who has sex with a minor, whether or not that minor willingly engaged in the act; is determined to have raped the minor. The crime can be either a misdemeanor or a felony, depending primarily on the age difference between the adult and the minor. In most (but not all) cases, an age difference of 3 years is the maximum that can exist and result in a misdemeanor charge. Any age difference greater than 3 years will typically be charged as a felony. It is of note that statutory rape can only stem from sexual intercourse, which by definition, can only occur between a male and a female, by means of the sex organ of the former, penetrating the sex organ of the latter.

  • Rape - While statutory rape determines the lack of consent of the victim as a matter of law, a charge of rape involves an act of sexual intercourse where the victim actually does not consent. It is proscribed by Penal Code section 261, and is a felony. While the lack of consent by the victim must be actual (as opposed to statutory), that does not mean that the victim must verbally state that they do not consent. There are a number of situations where the lack of consent will be determined from the facts and circumstances of the case. A victim may be too afraid to speak out (and so they say nothing,) or a victim may be incapable of speaking out because they were under the influence of drugs or alcohol, or they were unconscious or sleeping,  and therefore incapable of giving consent. 

  • Spousal Rape -  In terms of the nature of the crime, and the elements required to prove it; spousal rape, prohibited by Penal Code section 262, is largely the same as the crime of rape proscribed under Penal Code section 261. They both involve sexual intercourse without consent by any means, and both are prosecuted as felonies. The difference comes in that this crime can only be perpetrated by one spouse against another, and in the case of spousal rape, additional conditions of probations will apply. In particular, the defendant will be required to pay up to $1000.00 to a battered women's shelter and/or pay the costs of counseling for the victim.

  • Child Rape - This especially egregious form of rape, prohibited under Penal Code section 288.7, involves a perpetrator over the age of 18, and a victim under the age of 11 (i.e., age 10 or younger.) This law differs somewhat from other rape statutes in that its definition is not limited solely to sexual intercourse. There are two categories of the crime. The first involves either sexual intercourse or sodomy with a minor, age 10 or younger, and carries a penalty of 25 years to life in prison. The other category of the offense involves either oral copulation or sexual penetration of a victim age 10 or younger, and is punished by 15 years to life in prison. "Sexual Penetration" is somewhat different from sexual intercourse. Essentially, it is a broader definition of sexual intercourse, where it encompasses sexual contact with either the genitals or "anal opening" of either the victim or perpetrator, by any body part or foreign object. The degree of penetration required to commit the offense is defined under the Code as "however slight."

  • Child Pornography - This is punished under Penal Code sections 311 and 311.11, with the former defining obscene materials generally, with a specific carve-out for materials that show minors under the age of 16 engaging in sexual conduct, but has scientific, literary, artistic or political value, and the latter specifically prohibiting child pornography. Violation of section 311.11 is prosecuted as a felony, with penalties including jail or prison time, fines and other penalties, including sex offender registration. The statute is drafted broadly, so as to encompass a broad range of materials and behaviors. It is illegal to possess, control or create any prohibited materials, which generally are either pictures or videos, that depict minors engaging in sexual conduct. Certain materials are specifically excluded from the prohibition on child pornography, including drawings, models and movies rated by the MPAA (Motion Picture Association of America).

  • Lewd Acts With a Child - Whereas statutory rape can only be committed as between a male and a female, the crime of lewd acts with a child, prohibited by Penal Code section 288, can apply regardless of the genders of the perpetrator and the victim. It involves what are called "lewd and lascivious" acts, which is essentially touching the victim for purposes of sexual gratification.  The crime is prosecuted as a felony, but the amount of prison time a defendant will receive largely depends on the age of the victim and the age difference between the victim and the perpetrator.

  • Oral Copulation; Either Forced or Upon a Minor - This is prohibited by Penal Code section 288a, and specifically applies to what is commonly known as oral sex, and the crime can be committed by either giving or receiving. It can be prosecuted as a misdemeanor under limited circumstances (particularly, where there is no allegation that force or other means of coercion was used, and the victim was of the ages of 17 and 18,) but in most cases the crime will be prosecuted as a felony.  Penalties become more severe the younger the victim is, the older the perpetrator is, and if there are allegations that force or other means of coercion were employed.

  • Prostitution Crimes: California Penal Code sections 266h, 266i and 647 prohibit the various aspects of prostitution. Section 647 prohibits both the act of prostitution and the act of soliciting prostitution. These crimes are prosecuted as a misdemeanor. Sections 266h and 266i prohibit the activities commonly known as pimping or pandering. In contrast to solicitation and prostitution, a pimping charge may be  prosecuted as a felony and carries significant jail or prison time. Prostitution is defined as exchanging sexual conduct for money or some other thing of value. In order for a person to be convicted of solicitation or prostitution, it is not necessary for the sexual act to be completed, but it is necessary for some overt act, beyond mere acceptance of a solicitation or offer of prostitution, to take place in order to convict on the offense. A major exception to this law is that minors (someone under the age of 18) are considered victims of sexual exploitation, and cannot be convicted of a prostitution charge. 

  • Indecent Exposure: Indecent exposure, prohibited by Penal Code section 314, involves a person exposing their body, or their "private parts" in a public place, or in a private location where other people are gathered and are reasonably likely to be annoyed or offended by the exposure. For example, a person could likely commit indecent exposure at an office party, but not at a strip club holding an amateur-hour event. A person can also be convicted of indecent exposure if they incite, assist or encourage another person to commit an act of indecent exposure, even if that exposure is part of an art exhibition. These offenses are generally prosecuted as misdemeanors, but if an indecent exposure is committed in an inhabited dwelling (such as an apartment or house,) it will likely be prosecuted as a felony. Additionally, if a person commits repeat offenses of incident exposure (i.e., a second, third, etc. offense,) that repeat offense will be prosecuted as a felony.

  • Public Lewd Conduct: The same Penal Code section (section 647) that covers solicitation and prostitution, also prohibits public lewd conduct. This is essentially a more severe form of indecent exposure, but rather than involving exposing ones-self in public; public lewd conduct involves sexual conduct. This can range from something as simple as consensual touching of genitals or breasts, to having consensual sex in public. Under most circumstances, this crime will be charged as a misdemeanor. 

  • Sexual Battery: Prohibited by Penal Code section 243.4, sexual battery consists of an unwanted (i.e., not consented to) touching of another person's genitals, breasts or buttocks (defined in the statute as "intimate parts") for purposes of sexual gratification, arousal or abuse. This is a type of crime generally known as a "wobbler," meaning that it can be charged as either a misdemeanor or a felony; as determined in the discretion of the prosecutor. For the offense to be committed, it is not necessary to make direct contact with the victim's body. Touching the intimate part of the victim through their clothes is sufficient, and it is not relevant whether the offender is wearing gloves.

Sex Offender Registration:

Many, though not all, sex crimes which result in a conviction will result in the offender to being required to register as a sex offender as a condition of probation, or upon release after serving a sentence. This can be devastating for anyone who is required to register, as the whole point of the registration act (codified in California Penal Code section 290) is to put the public on notice of the presence of a sex offender, and enables the public to track the offender online, pursuant to what is known as "Megan's Law."

The registration requirements under the law persist for at least 10 years, but a sex offender can be required to register for a term of 20 years, or even for life; depending on the nature of the sex offense for which they were convicted. The 10 year registration requirement is typically for misdemeanor offenses, such as indecent exposure or sexual battery. The 20 year registration requirement typically applies in more serious cases, usually when the offender is convicted of a felony offense, such as a lewd act with a minor. Lifetime registration applies in the case of the most serious offenses, or when there are repeat offenses.

If a person is required to register as a sex offender, there are a number of obligations imposed on them which deal primarily with reporting to local authorities. Initially, the offender must report their home address to the local law enforcement agency within 5 business days of release from jail or prison. The offender must also report any change of address within the same time constraints whenever they move to a new home. If the offender is homeless, they are required to report the general location where they are physically present to local law enforcement. Additionally, of the offender attends a college or university, they have 5 business days to provide their information to campus police.

If an offender applies for a job that involves contact with children in a supervisory capacity, they must disclose the fact that they are a registered sex offender when applying for the job, or upon accepting a position for which they did not apply. If the reason the individual is required to register as a sex offender involved a crime perpetrated against a minor under the age of 16, they are outright prohibited from taking such a position.  

One of the most damaging aspects of registering as a sex offender is the "Sex Offender Tracking Program" administered by the California Department of Justice. When a sex offender reports to local law enforcement, that information is forwarded to the California DOJ who inputs that information into their online tracking application. This allows any member of the public to view the location, biographical information and reason for sex offender registration of any offender, along with a picture and a description of distinguishing features. Any member of the public is allowed to search the entire database without creating an account or providing any information besides confirming they are not a robot. However, if a person uses the information on the website to harass or threaten any sex offender in the database, they could themselves face criminal prosecution.

While most sex offenders appear on the website, there is a certain number (about 25%) of sex offenders, that while they must comply with all reporting requirements; they do not appear on the website. These are generally sex offenders with convictions for less-severe crimes, and offenders who have successfully applied for exclusion from the database.

Penalties:

The penalties imposed for sex crimes can vary substantially depending on the nature of the crime, the age and disposition of the offender, the age of the victim, the relationship (if any) between the offender and the victim or victims, the number and type of prior offenses, and any number of additional factors that may come into play in a particular case. Some crimes require payment of fines, others require payment of restitution to victims, some require enrollment and completion of counseling or other types of treatment programs, some will result in loss of parental rights or the ability to hold certain jobs and many will require registration as a sex offender; whether for a term of years or for life.

That said, there are some basic guidelines that control the level and extent of penalties a person will face when convicted of a sex crime. The most basic of these is the designation of a crime as either a felony or a misdemeanor. Some sex crimes are only prosecuted as felonies, others are prosecuted only as misdemeanors and some are what are known as wobblers, and can be prosecuted as either.

For a misdemeanor, typically, the penalties a person will face upon conviction are:

  1. Jail time of up to 1 year in a county jail; and
  2. A fine of up to $1000.00; and
  3. 3 years of summary probation.

Misdemeanor convictions can also include many of the other potential penalties, such as mandatory treatment programs and sex offender registration, and the level of fines imposed, or restitution required, can be more or less than $1000; but the jail and probation time will generally not exceed 1 year in jail and 3 years summary probation.

For felonies, the range of potential periods of incarceration varies much more substantially, anywhere from 16 months to life in prison (or more precisely, a sentence of 25 years to life,) and the fines and/or restitution can be much more substantial ($10,000.00 or more.) If probation is granted, it will typically be at least 5 years of formal probation, which requires regular reporting to a probation officer.     

 How We can Help:

David Foos is an experienced sex crimes defense attorney who has representation many people accused of such crimes.  David was a Deputy Public Defender for 8 years where he handled every type of sex crime.  After this position, David was appointed to the Bench, as a Superior Court Judicial Officer, where he presided over many cases of sex crimes.  Currently, David has been in private practice for 12 years as a criminal defense attorney and has represented many defendants on these charges. Over his 40 years of practice Mr. Foos has developed the skill and experience to successfully defend sex crimes cases.  David will strenuously investigate your case, and develop every possible defense to the charges.  David will meet with you frequently and develop strategy.  If it is beneficial to you to seek a plea bargain, David will direct you in the steps to follow to get the best possible deal.  Contact our Sacramento Criminal Lawyer for a free consultation at 916-779-3500, or on the web at This email address is being protected from spambots. You need JavaScript enabled to view it..  


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