Individuals accused of annoying or molesting a child under 18 would face criminal charges under Penal Code 647.6. The statute addresses behavior motivated by an abnormal sexual interest in a minor. This offense is commonly known as child molestation. It involves engaging in conduct that is likely to disturb or irritate a child and is sexually motivated. It is worth mentioning that one can face charges under this statute without necessarily having physical contact with the minor. Verbal actions can be considered sufficient for prosecution. It is crucial to emphasize that bothering or harassing a child under 18 is distinct from other offenses like child abuse, sexual abuse, or statutory rape. Each of these crimes imposes its penalties and consequences under California law. The team at Chula Vista Criminal Attorney breaks down the offense below.
Annoying or Molesting a Child Under 18 Under California Law
Two terms are significant under PC 647.6. Both, for purposes of this statute, refer to two issues:
- Behavior intended to disturb, irritate, or bother a child, for example, repeatedly following or contacting the child.
- Behavior intended to arouse or gratify the offender or the child sexually, for example, engaging in sexual conduct or exposing yourself to the child. Simply put, sexual interest in the minor.
Note: The legal definition of annoying or molesting a child does not necessarily require physical contact with the child. Verbal conduct, like sexually suggestive language, is sufficient for prosecution under this statute.
Further, the victims under this statute are minors. This statute aims to safeguard children’s innocence. The law acknowledges that children under 18 are too young to comprehend the nature of sexual acts or other adult-like content.
Elements of the Crime
While a mere allegation is sufficient for the public to deem the accused guilty, the legal system demands that the state provide evidence to support the accusations. The courts will only return a guilty verdict if prosecutors prove the following elements of the crime:
- You annoyed or molested a child under 18 at the time of the offense — The law requires that the child was annoyed or molested in some way by the defendant's behavior. Actions that meet this threshold can include stalking, harassing, or following the child and lewd or lascivious behavior directed towards the child.
- You acted intending to annoy or molest the child — It is necessary that you had the intention to bother or harass the child. This means that you intended to engage in conduct that would likely disturb or irritate the child and that this conduct was not accidental or unintentional.
- Your behavior was motivated by a sexual interest in the child — Your conduct must be motivated by a sexual interest in the child. You must have acted to arouse or gratify yourself or the child sexually. Further, prosecutors must show that this motivation was a significant factor in your conduct.
Let us look at some terms within the elements of the crime that would help better understand the offense.
Conduct Likely to Irritate or Annoy the Minor
PC 647.6 focuses on conduct that:
- Results from a sexual interest in the child, and
- It invades the minor’s privacy.
This behavior can manifest in various ways, for example, by persistently following or reaching out to the child, hanging around near the child's residence or educational institution, or engaging in sexually suggestive discussions with the child.
The behavior must be more than a minor annoyance or irritation. It must rise to a level considered offensive or harmful to a reasonable person if directed toward a child. This means the conduct must be such that a person of ordinary sensibilities would find it objectionable and disturbing.
A PC 647.6 violation is a general intent crime. This implies that the prosecution is not required to demonstrate that you meant to break the law or cause harm to the child. Instead, the prosecution must prove that you acted deliberately or with awareness, intending to partake in conduct that could upset or aggravate the child, and that this behavior had a sexual inclination.
The prosecution needs to establish that you intended to indulge in the actions forbidden by the law, regardless of whether you intended to violate the law or cause harm to the minor.
Additionally, the fact that a child was not irritated by the conduct is irrelevant in determining whether a violation of PC 647.6 occurred. Instead, the focus is on an objective test examining the act rather than its actual effect on the child.
The critical element of the offense is that the conduct is likely to disturb or irritate a child and is motivated by a sexual interest in children.
Motivated by Sexual interest
The phrase "motivated by sexual interest" in the context of this statute means that you engaged in the prohibited conduct with the intent to gratify or arouse yourself sexually. In other words, your behavior must be motivated by a sexual interest in children.
This requirement helps ensure that the statute is not applied to innocent behavior that is not sexually motivated. Examples of these behaviors include:
- Giving a child a harmless compliment or
- Engaging in regular social interaction.
Instead, the behavior must be driven by a sexual interest in children to be considered a violation of Section 647.6. Further, it is not a violation of Penal Code 647.6 if the act is not motivated by sexual interest. Additionally, if a child accidentally observes or hears the conduct, it does not violate this law.
Prosecutors use the following evidence to prove the intent of sexual interest:
- Your past actions toward a child with whom they had a prior relationship or
- The circumstances surrounding the alleged conduct.
Fighting Annoying or Molesting a Child Under 18 Charges
With the help of your attorney, you can use one of several defense strategies to challenge the allegations of a PC 647.6 violation. The following are the common defenses attorneys use in PC 647.6 violation cases.
Lack of Motivation
One of the elements the district attorney has to substantiate is that your actions were motivated by a sexual interest in the child. Asserting that you lacked this motivation challenges this element. Under this defense, you will argue that your behavior was not motivated by a sexual interest in children, which is a necessary element of the offense.
Your attorney could present evidence that your behavior was not sexually motivated. Some examples include:
- Witness testimony — Most witnesses testify to the defendant’s character. Witnesses who know you well will testify that you do not have a sexual interest in children.
- Expert testimony — Testimonies from experts are also pivotal. An expert witness, for example, a psychologist, could testify about your behavior and motivations based on an evaluation or assessment of you. From his/her examination, a psychologist will determine whether you have a sexual interest in minors.
- Prior conduct — Evidence of your prior conduct toward children could be relevant to show that you lack the motivation to engage in sexually motivated behavior toward minors. Most defendants are repeat offenders. Therefore, there is a higher probability of proving your innocence if you do not have a criminal past, especially involving sexual-based offenses on minors.
- Circumstantial evidence — Other circumstantial evidence surrounding the alleged conduct, for example, the context in which the behavior occurred or any statements you made at the time. Both could help show that your behavior was not sexually motivated.
It is the prosecution’s responsibility to demonstrate all aspects of the crime, which includes proving the element of sexual motivation. However, if you raise the lack of motivation defense, the burden shifts to you to provide evidence that your behavior was not motivated by a sexual interest in children.
Your Actions Were Not Directed at the Child
To successfully assert this defense, you must show that your conduct was not directed at a minor but at an adult or some other object or activity. Your attorney can establish this by demonstrating that you did not know or had reason to know that the individual you were interacting with was under 18. Additionally, your attorney will assert that your conduct was not motivated by an abnormal sexual interest in a minor. There are a few ways you can demonstrate the lack of knowledge:
- Lack of knowledge or awareness that the individual was under 18 — This argument is supported by evidence, including the minor's appearance, identification, or representations made by the child that led you to believe they were an adult.
- Absence of abnormal sexual interest — You could argue that your conduct was not motivated by an odd sexual interest in a child but rather by a lawful or innocent motive. This defense is supported by evidence like your prior interactions with adults or the context in which the conduct occurred.
- Lack of intent — Your attorney could argue that you did not intend to engage in conduct that was annoying or molesting to a minor. He/she will demonstrate this by showing the courts your actions leading up to the interaction or the specific nature of the conduct.
To prove this defense, your attorney could present the following evidence:
- Communication records — Evidence of communication records between you and the minor can be examined to establish that you did not know that the individual was a minor. This could include email, chat logs, and text messages.
- Testimony from the minor — If the child in question can testify, they could provide evidence to demonstrate that you did not interact with them. Further, their testimony could also show that the conduct was not directed at them.
- Context of the interaction — Evidence surrounding the circumstances of the interaction, for example, where it took place or what you were doing at the time, could also support the defense that your conduct was not directed at a minor.
Calling to Question Your Accuser or a Key Witness’ Testimony
Attacking the accuser's credibility or the credibility of a critical witness is a common defense strategy in cases involving allegations of annoying or molesting a child under 18. This defense strategy requires questioning the reliability and accuracy of the accuser's statements or those of a critical witness to create doubt about the prosecution's case.
Defense attorneys use various tactics to undermine the credibility of the accuser or critical witness. These include:
- Cross-examination — Your attorney will cross-examine the accuser or witness to expose inconsistencies or contradictions in their testimony.
- Impeachment — Your attorney could attempt to impeach the credibility of the accuser or the witness. He/she will present evidence of their criminal history, history of lying or making false statements, or other factors that could suggest they are unreliable witnesses.
- Presenting alternative theories — The defense attorney could offer alternative theories or explanations for the accuser's allegations or the key witness's testimony to cast doubt on their credibility.
- Investigating the accuser — Your attorney could investigate the accuser's background and history to find the information necessary to undermine their credibility. In a case with no confession, the prosecution's case typically depends on the credibility of the accuser and any potential witnesses. To challenge the prosecution's case, a defense lawyer could take several steps, such as:
- Subpoenaing the accuser's records, including school, counseling, and medical records, as well as their emails and social media accounts
- Interviewing the accuser's schoolmates, family members, friends, and social media friends
- Conducting a thorough background check on both the accuser and any alleged witnesses.
Through these efforts, the defense could uncover evidence that the accuser has a history of lying or making false accusations or that they held a bias against the accused.
Note: Attacking the credibility of the accuser or a key witness can be a sensitive issue, particularly in cases involving allegations of child molestation. However, some cases require this strategy if the defendant is factually innocent.
You Were Falsely Accused
The "false allegations” defense involves arguing that the accuser made up the allegations of annoying or molesting a child under 18. This defense is often used when the accused believes the accuser has ulterior motives, for example, revenge, blackmail, or gaining some other advantage.
To support this defense, the defense attorney could investigate the accuser's background, looking for any evidence of a motive to make false allegations. They could also try to demonstrate that the accuser's claims are inconsistent or implausible. This could involve cross-examining the accuser and witnesses, highlighting inconsistencies in their testimony, or pointing out any prior inconsistent statements.
However, it is worth noting that this defense can be challenging to prove. It could not be enough to show that the accuser has the motive to lie. The defense must present evidence that proves the allegations are false beyond a reasonable doubt.
The Conduct Was Not Objectively Offensive
By asserting that a reasonable person would not find your actions objectively offensive, you argue that the conduct was subjective and the prosecution's case relies on the accuser's interpretation of your actions.
Your attorney could present evidence and testimony from witnesses who observed the conduct to demonstrate that it was not objectively annoying or molesting. They could also try to show that your accuser or other witnesses misinterpreted or misunderstood your actions.
To prove that the conduct was not objectively offensive, you could present evidence to show that a reasonable person in the same situation would not have been offended or disturbed by your conduct. This evidence could include the following:
- Testimony from witnesses present at the time of the alleged offense who could attest that they did not find the conduct offensive or disturbing.
- Evidence that the conduct was typical in the particular community or culture in which it occurred. Therefore it cannot be considered offensive or disturbing by a reasonable person.
- Expert testimony from psychologists or other professionals who could explain why a reasonable person in the same situation would not have been offended or disturbed by the conduct.
- Evidence that the alleged victim has a history of exaggerating or fabricating allegations of offensive conduct.
- Evidence that the alleged victim has the motive to make false allegations. For example, to seek revenge or to gain an advantage in a custody or other legal dispute.
The effectiveness of this defense strategy depends on the quality of the evidence presented and the convincing nature of the arguments your attorney makes.
Penalties of a PC 647.6 Violation
Annoying or molesting a child is a grave offense. The facts of the case determine the likely penalties. However, it is worth noting that you could face misdemeanor or felony penalties.
If the PC 647.6 violation case does not have aggravating factors, you will be charged with and convicted of a misdemeanor violation. You could potentially face the following penalties if convicted:
- Summary probation instead of jail time.
- A maximum of one year in jail and/or
- A maximum fine of $5,000.
The PC 647.6 violation becomes a wobbler if you annoy or molest a minor after accessing the following without consent:
- An inhabited dwelling home.
- The inhabited section of any other building.
- A trailer coach, or
Prosecutors consider your criminal past and potential to be dangerous to children in determining whether to charge you with a misdemeanor or felony violation.
If convicted of a misdemeanor under PC 646.7(b), your violation is punishable by:
- Summary or misdemeanor probation.
- A maximum of one year in jail and/or
- A maximum fine of $5,000.
If convicted of a felony under PC 646.7(b), your violation is punishable by:
- Formal or felony probation instead of time in prison.
- 16 months, 2, or 3 years in prison.
Your current violation becomes a felony if you have a prior conviction for a PC 647.6 violation. A second or subsequent conviction results in:
- Formal probation.
- Up to three years in prison.
If you have a prior felony conviction for specific sexual offenses, you will face felony charges even if the PC 647.6 violation is your first offense. The violation is punishable by:
- 2, 4, or 6 years in prison.
Some of the sexual offenses considered include:
- Rape of a minor, a violation of PC 261.
- Lewd acts with a minor, a violation of PC 288.
- Continuous sexual abuse of a minor, a violation of PC 288.5, and
- Child pornography, a violation of PC 311.4.
Note: A judge considers whether you are a risk to their children, your criminal past, and the facts of the case in his/her assessment of whether you remain on probation or serve a jail or prison sentence. One of the key probation terms you must adhere to is not violating a stay-away order. The order prevents you from contacting the victim.
Sex Offender Registration
In the event of a PC 647.6 conviction, the judge could mandate that you register as a sex offender. This mandate is in accordance with the Sex Offender Registration Act (SORA).
- Individuals convicted of annoying or molesting a child as a first-time conviction must renew their tier-one sex offender status annually for at least 10 years.
- Second and subsequent offenders fall into the tier-two category. They must renew their sex offender status annually for at least 20 years.
Per California Senate Bill 384, PC 647.6 violations no longer require lifetime registration. According to this statute, the life-long registration requirement is reserved for tier-three offenses.
Find an Experienced Sex Crime Defense Attorney Near Me
When facing PC 647.6 charges, you need an attorney who understands the legal process and can protect your rights. This attorney should be able to develop the best strategy, which could include negotiating with the prosecution to reduce or drop the charges and presenting the best defense strategy at trial. At Chula Vista Criminal Attorney, we embody these aspects. We have a proven track record of securing favorable legal outcomes for our clients. Call us today at 619-877-6894 to schedule your free case assessment.