In California, a person who believes that he or she has witnessed forced child molestation of a child under the age of 14, as defined in penal code 288(b)(1), must notify a law enforcement officer of his or her observation (PC ss152.3(a) Abbrev.).
The notice required per PC 152.3(a) is satisfied if the person who allegedly witnessed the child molestation by force either notifies, or attempts to notify, law enforcement, by either telephone, or any other means (PC 152.3(c) Abbrev.).
The duty to report forced child molestation does not apply to persons who otherwise have privileged relationships, such as attorney to client or husband and wife to each other (PC 152(b) Abbrev. & Extrapolated).
Blood Relationship: The duty to report witnessed forced child molestation does not apply to a person who is blood-related to the alleged child molester (i.e., spouse, parent, child, brother, sister, grandparent, grandchild, etc.) [PC 152.3(e)(1)].
Note: A parent has a duty to protect his or her child. Therefore, if the parent of a child witnesses another person sexually abuse his or her child, including the other parent of the child, then the parent who witnesses the sexual abuse must take all necessary steps to protect that child from future abuse, even though they do not have a duty to report the witnessed child molestation (PC 152.3 & PC 273a(a)).
Example: John witnesses his friend, Chester, sexually molest Jane Doe, a twelve-year-old girl. John does not want to report what he witnessed because he fears that Chester will be arrested and charged with felony child molestation crimes; therefore, John does not report Chester’s child molestation. Result: If John’s lack of reporting is discovered, then John may be charged with penal code 152 violations.
PC 152.3 Penalty
Failure to report forced child molestation is classified as a misdemeanor. If found guilty of PC 152.3, the defendant may face up to six (6) months in the county jail and suffer a of not more than $1,500 (PC 152(d) Abbrev.).
Probation Sentence: A defendant who is convicted of failure to report child molestation, as provided in PC 152.3(a) above, may be placed on probation, as opposed to suffering a jail sentence. A probation sentence for PC 152.3 is a period of supervision, either by the court, or by a probation officer.
Note: A probation sentence for any violation of PC 152.3 is not guaranteed. Whether the defendant receives a probation sentence after a PC 152.3 conviction depends on many factors, including the defendant’s criminal history, the facts and circumstances of the offense, the terms of any negotiated plea bargain agreement between the district attorney and the defendant, and more.
Sex Offender Registration: Failure to report another person’s alleged child molestation is not a crime for which sex offender registration is required; however, if the court finds that the defendant derived sexual gratification when he or she witnessed the child molestation (and failed to report the child molestation), then the judge has discretion to order sex offender registration for the defendant for up to ten (10) years (PC 290.006).
Mandated Reporters: Persons who are mandated to report suspected child abuse and child neglect, including suspected child molestation, may be charged with a violation of PC 152.3 for any failure to report witnessed child molestation. The criminal punishments related to a PC 153.3 conviction are in addition to any penalties and punishments suffered by the mandated reporter by virtue of his or her status as such (i.e., professional licensing consequences for therapist, nurses, doctors, teachers, etc.).
Other Penalties: In addition to a possible jail or probation sentence, if found guilty of failure to report child molestation, the defendant could suffer other direct and indirect consequences, such as professional licensing consequences (i.e., doctors, lawyers, teachers, etc.), immigration consequences for non-US citizens, military service consequences, court fines and fees, criminal protective orders, civil lawsuits, and more.
PC 152.3 Defenses
Common defenses to a PC 152.3 criminal charge include reasonable mistake as to what the defendant witnessed (PC 152.3(e)(2), failure to report for the defendant own safety (PC 152.3(e)(3), coerced confession of the defendant, statute of limitations (one year from the date of the alleged child molestation offense), and more.
Example: John witnesses a paramedic touching a child’s genitals. John is not a paramedic, and he reasonably does not know of the child’s injuries or whether the paramedic needs to touch the child's genitals for the child's medical treatment. Later, the paramedic is arrested for his actions and charged with a violation of PC 288(b)(1) [Lewd Act on a Child by Force]. Result: John did not know reasonably that what he witnessed was child molestation; therefore, he should not be charged with penal code 152.3.
Example II: John witnesses his friend, Chester, sexually molest a child. John wants to report what he witnessed, but Chester has threatened to kill John’s family if John reports the witnessed child molestation. Result: John is under duress to not report Chester’s child molestation; therefore, John should not be found guilty of failure to report child molestation.
PC 152.3 does not apply to all sex offense, even the alleged sex offenses appear to be child molestation in nature. For example, if John witnesses Chester lures an underage girl to Chester’s house for the purpose of having sex with the minor (i.e., "statutory rape"), then John does not have a duty to report Chester’s attempts. PC 152.3 law is concerned with forced child molestation of a minor under 14 (i.e., Lewd Act with a Child by Force [PC 288(b)(1)].
Note: PC 152.3 deals with the duty to report forced child molestation of a child under 14, but it also covers other crimes not discussed here, including the duty to report the witnessed murder of child under 14 (PC 152(a)(1)), or rape of a child under 14 (152(a)(2).
If you have been charged with a violation of the duty to report child molestation by force, or penal code 152.3, contact our sex crimes criminal defense attorneys today for a free consultation. Our team of high-experienced and award-winning sex crimes defense attorneys have successfully defended against the toughest sex crimes allegations, including PC 288(a), PC 288.5, PC 288(b), and much more. In-office, first contact consultations are free. Call today!
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