Penal Code 288.3 PC – Contacting a Minor to Commit a Felony

Penal Code 288.3 PC is a California law that makes it illegal for an adult to contact or communicate with a minor if they intend to commit certain serious crimes against that minor. This offense is commonly referred to as “contacting a minor to commit a felony.”

This law was enacted to protect minors from predators who try to lure them into dangerous situations. It covers communications through any means, including online or in person. The purpose is to stop harmful conduct before it occurs by criminalizing the initial contact.

Elements of the Crime

For a prosecutor to convict someone under this law, they need to prove these elements:

• The defendant contacted or communicated with a minor, or attempted to do so
• When the defendant did so, they intended to commit certain crimes against the minor, specifically:
  • Kidnapping
  • Rape
  • Sodomy
  • Oral copulation
  • Sexual penetration
  • Lewd acts
  • Sending harmful matter to a minor
  • Child pornography crimes
  • Child abuse
• The defendant could reasonably have known the victim was under 18

The alleged intent to commit one of the above crimes is a critical element. The communication itself does not need to be explicit – the intent is what matters.[1]

Penalties

A violation of Penal Code 288.3 is a felony offense. Potential penalties include:

• 16 months, 2 years, or 3 years in county jail
• Up to $10,000 in fines
• Both jail time and fines

If the defendant has a prior conviction under this statute, they will face an additional mandatory sentence of 5 years in state prison.[2]

Sex Offender Registration

Perhaps most seriously, a conviction under PC 288.3 will also require the defendant to register as a sex offender in California. The majority of violators will have to register for life as a Tier 3 offender. However, there are exceptions if the intended crime was misdemeanor sexual battery or statutory rape.[3]

Legal Defenses

There are several legal defenses that a California criminal defense lawyer could use to contest Penal Code 288.3 charges, such as:

• No intent to commit a felony – If the defendant did not actually intend to commit one of the specified crimes, then this key element is missing.
• No communication occurred – If the prosecutor cannot prove that the defendant contacted or communicated with a minor, they cannot establish an essential element of the crime.
• No reason to believe the victim was underage – If the minor misrepresented their age or appeared to be an adult, this could undermine the prosecution’s case.
• Entrapment – If the contact was instigated by law enforcement trying to create a crime, entrapment laws may apply.
• False accusations – Minors sometimes falsely allege abuse or misconduct, which could lead to false charges.

Related Offenses

There are other similar laws that criminalize sexual communications with minors, such as:

• Penal Code 288.4 – Arranging a meeting with a minor for lewd purposes
• Penal Code 288.2 – Harmful matter sent to seduce a minor
• Penal Code 261.5 – Unlawful sexual intercourse with a minor (statutory rape)

However, unlike PC 288.3, statutory rape laws only apply to actual sexual contact. They do not criminalize communications or attempts to arrange such contact.[4]

Frequently Asked Questions

1. Do police need a warrant to obtain communications with a minor?

Generally yes. The 4th Amendment requires police to obtain a warrant before accessing private communications such as text messages or emails. However, websites and social media platforms may voluntarily provide information to police in some cases.

2. Can someone be charged with this crime even if they did not communicate about sex?

Yes, as long as the communication reflects an intent to commit one of the specified crimes. The communication does not need to be explicitly about sex acts or include inappropriate photos/videos. Just evidence of intent to commit a felony against the minor.[5]

3. What if the minor lied about their age?

That could potentially be a defense. If the minor explicitly said they were 18 or older, or their profile/ad listed an age over 18, the defendant may not have reasonably known they were a minor. This could undermine the prosecution’s case.

4. Could someone be charged with this crime even if they were just joking or exaggerating?

Potentially yes. Prosecutors just need to prove intent to commit a felony. It does not matter if the person was serious or just exaggerating. However, this context could help the defense argue there was no true criminal intent.

5. What if the minor initiated the communication?

That does not matter legally. An adult has a legal duty not to engage with communications that reflect intent to commit a felony against a minor. It does not matter who initiated the contact.