California's Molestation Law Explained

Question: Eric Norman Olsen, 29, a former substitute teacher, on 7/6/07 in Ontario, California, was sentenced to five years in prison for molesting six first-grade female students. Per police, he is suspected of molesting between 100 and 200 female students. What type of behavior is considered molestation under the law?

Answer: California's child-molestation law has two basic elements. Under Penal Code 288, molestation occurs any time both the victim is younger than 14 and the touching is intended to arouse the sexual desires of either the offender or the victim.

Contrary to what some might assume, the law doesn't limit the definition of molestation to any specific parts of the body, said Jason Anderson, the San Bernardino County deputy district attorney handling Olsen's case.

An offender can touch any part of a child's body for the act to be considered a lewd or lascivious act as long as there's evidence to show it's being done out of sexual desire, Anderson said.

"If there's a 10-year-old boy and I go up to him and touch him on the top of the foot if I do that with a desire to arouse my own sexual gratification, that's a 288," he said.

Molestation is most obvious when it involves the touching of private parts. With other types of touching, investigators must typically rely on statements from the suspect and any witnesses, as well as the context of the touching and the number of times it occurred, Anderson said.

California State Statutes

Reference:  http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=edc

Definitions of Child Abuse and Neglect

Statute: Penal Code §§ 11165.1; 11165.2; 11165.4; 11165.6

Standard: Inflicted by non-accidental means

Exemption:
  • Informed medical decision
  • Reasonable force
  • Religious exemption
Categories of Maltreatment Defined in Statute
  • Physical abuse
  • Neglect
  • Sexual abuse
  • Sexual exploitation
Categories of Maltreatment Not Defined in Statute
  • Emotional/mental injury
  • Abandonment

Full Text of Statute

DEFINITIONS Cal. Penal Code § 11165.1 (West, WESTLAW through End of 1999-2000 Reg. Sess., 1st Ex. Sess., & Nov. 7, 2000)

'Sexual abuse' means sexual assault or sexual exploitation as defined by the following:

'Sexual assault' includes rape, statutory rape, rape in concert, incest, sodomy, lewd or lascivious acts upon a child, oral copulation, sexual penetration, or child molestation. Conduct described as 'sexual assault' includes, but is not limited to, all of the following:

  • Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.
  • Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
  • Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.
  • The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose;
  • The intentional masturbation of the perpetrator's genitals in the presence of a child.

'Sexual exploitation' refers to any of the following:

  • Conduct involving matter depicting a minor engaged in obscene acts in violation of law; preparing, selling, or distributing obscene matter that depicts minors; employment of minor to perform obscene acts.
  • Any person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or any person responsible for a child's welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct.
  • Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons.

Penal Code §165.2 (West 1992)

'Neglect' means the negligent treatment or the maltreatment of a child by a person responsible for the child's welfare under circumstances indicating harm or threatened harm to the child's health or welfare. The term includes both acts and omissions on the part of the responsible person.

'Severe neglect' means the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive. 'Severe neglect' also means those situations of neglect where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered, including the intentional failure to provide adequate food, clothing, shelter, or medical care.

'General neglect' means the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred.

Cal. Penal Code § 11165.3 (West 1992)

'Willful cruelty or unjustifiable punishment of a child' means a situation where any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered.

Cal. Penal Code § 11165.6 (West, WESTLAW through 2002 portion of 2001-2002 Res. Sess. & 3rd Ex. Sess.)

'Child abuse or neglect' includes physical injury inflicted by other than accidental means upon a child by another person, sexual abuse, neglect, willful cruelty or unjustifiable punishment, unlawful corporal punishment or injury.

EXCEPTIONS Cal. Penal Code § 11165.2(b) (West 1992)

For the purposes of this chapter, a child receiving treatment by spiritual means or not receiving specified medical treatment for religious reasons, shall not for that reason alone be considered a neglected child. An informed and appropriate medical decision made by parent or guardian after consultation with a physician or physicians who have examined the minor does not constitute neglect.

Cal. Penal Code § 11165.4 (West Supp. 1998)

'Unlawful corporal punishment and injury' does not include an amount of force that is reasonable and necessary for a person employed by or engaged in a public school to quell a disturbance threatening physical injury to person or damage to property, for purposes of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil, and also does not include the exercise of the degree of physical control authorized by the Education Code. It also does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer.

Cal. Penal Code § 11165.6 (West, WESTLAW through 2002 portion of 2001-2002 Reg. Sess. & 3rd Ex. Sess.)

'Child abuse or neglect' does not include a mutual affray between minors.

'Child abuse or neglect' does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer.