Penal Code 288.2 PC | Sending Harmful Matter of Intent With Seducing Minor

Penal Code 288.2 PC | Sending Harmful Matter of Intent With Seducing Minor

Penal Code 288.2 PC is a California law that makes it illegal to send or distribute harmful or obscene material to a minor under 18 with the intent to sexually arouse or seduce the minor. This offense, commonly referred to as “sexting”, can be charged as either a misdemeanor or felony and carries severe consequences such as jail or prison time and mandatory lifetime sex offender registration.

Related Offenses

Other sex crimes related to Penal Code 288.2 include:

• Lewd acts with a minor (PC 288) – Committing lewd acts on a minor under 14.
• Annoying or molesting a minor (PC 647.6) – Annoying or molesting a minor under 18.
• Child pornography (PC 311.11) – Possessing or distributing child pornography.

Impact on Immigration Status

A conviction under Penal Code 288.2 may trigger deportation for non-citizen defendants. The law categorizes this offense under “crimes involving moral turpitude” which can make a non-citizen removable. Defendants who are not U.S. citizens should consult with an experienced immigration attorney before pleading to any charges.

Expungement Eligibility

If convicted of a misdemeanor violation of Penal Code 288.2, a defendant may petition for expungement under Penal Code 1203.4 once probation is completed. Felony convictions are not eligible for expungement. An expungement (dismissal) erases the conviction from the defendant’s criminal record.

Sentencing Enhancements

Sentencing enhancements can increase penalties if certain circumstances apply, such as:

• Prior sex offense conviction – 5 year enhancement if the defendant was previously convicted of a specified sex offense, including PC 288.2.
• Use of technology – 1 year enhancement if the offense involved use of technology, like a computer or phone.

Common Defenses

There are several legal defenses that a criminal defense attorney could use to fight Penal Code 288.2 charges:

Lack of Criminal Intent

A key element of this offense is intent to sexually arouse/seduce the minor. The defense can argue the defendant lacked this intent when sending the material. For example, the defendant inadvertently sent a sexual image meant for another adult.

Material Not Harmful

The prosecution must prove the material sent meets the legal definition of “harmful matter.” The defense may argue the material does not depict minors engaged in sexual conduct, appeal to prurient interest in sex, or lack artistic/literary value.

False Accusations

Minors, especially teenagers, may falsely accuse an adult of sending them inappropriate material. This could occur out of anger, revenge, or mental health issues. A skilled defense lawyer can investigate and expose fabricated allegations.

Mistake of Age

The defendant can claim they reasonably believed the minor was over 18, negating the knowledge element. This is especially common in online communications where the minor’s age is not always apparent.

Punishment and Sentencing

Penal Code 288.2 violations can be punished as:

• Misdemeanor: Up to 1 year in county jail, up to $1,000 fine.
• Felony: 16 months, 2 years or 3 years in California state prison, up to $10,000 fine.

Sentencing enhancements can increase penalties if the defendant has a prior sex offense conviction or used technology in committing the crime.

Lifetime Sex Offender Registration

A conviction under PC 288.2 requires lifetime registration as a sex offender under California Penal Code 290. This subjects the defendant to stringent residency, employment, and reporting restrictions. Failure to register can result in new criminal charges.

Immigration Consequences

Under immigration law, a conviction for sending harmful matter to seduce a minor is considered a “crime involving moral turpitude.” This can trigger deportation for non-citizens, permanent residents, and visa holders. Defendants should consult an experienced immigration attorney before pleading guilty.