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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20233
Experience:  Handling criminal and probation matters for over 14 years.
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IN CALIFORNIA, A 4 YR OLD GIRL WILLINGLY OFFERS AND GAVES ORAL

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IN CALIFORNIA, A 4 YR OLD GIRL WILLINGLY OFFERS AND GAVES ORAL SEX TO A 12 YEAR OLD BOY, WITHOUT ANY TYPE OF FORCE, FEAR, THREATS, OR DURESS. THERE WAS AN AGREEMENT BETWEEN THE TWO THAT SHE WOULD GET CHIPS AND JUICE IF SHE DOES THIS. MOM FINDS OUT WHAT OCCURED AND CALLS THE POLICE AND 12 YEAR OLD IS ARRESTED BUT THE 4 YEAR OLD IS NOT.

QUESTION: IS THE 12 YEAR OLD BOY PUNISHABLE UNDER CA PC288 IF HE IS UNDER 14 YEARS OLD HIMSELF?
Welcome and thank you for your question!

You asked if the 12-year-old boy can be charged with the crime under California Penal Code 288. The relevant portion of that law says:

288.

(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.



Thus, the answer to your question is "yes" because the actual text of the law does not list an age restriction for the defendant. The law says "any person."

It has been my pleasure to assist you today with your information needs. It is my goal that you are satisfied. No expert can promise you an answer that is favorable to your circumstances. But I will do my very best to explain the legal principles that are related to the facts you’ve described so that you can better understand the “why” of things.

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Thanks,
~~ J.B.
Customer: replied 5 years ago.

why isnt the 4 year old arrested if "any persons"?

Customer: replied 5 years ago.

Lastly, The 12 year old understands what he did was wrong, does it matter if he did not know it was a crime?

Thank you for the follow-up. The four-year-old is not arrested because they are not old enough to know the difference between right and wrong.

As for the 12-year-old, it does not matter if he knew that it was a crime.

I hope this helps to clarify things.

~~ J.B.
Customer: replied 5 years ago.

i thought there has to be a mens rea and an actus reus in order for it to be a crime. Last question, i promise

The other consideration is that the four-year-old cannot give consent.

From the facts you've described, the 12-year-old's mens rea is established if the prosecutor can prove that he did this with the " intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of" himself.

The actus reus is established by proof of the deal (oral sex in exchange for chips and juice).

J.B.
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