LEWDNESS WITH CHILD UNDER 16 YEARS

Committing a lewdness with a child under the age of 16 is a serious crime in Nevada, and can carry severe penalties.

What is the legal definition of lewdness with a child under 16 years?

Lewdness with a child under 16 years is defined in NRS 201.230.

NRS 201.230 –Lewdness with a child under 16 years; Penalties.

A person is guilty of lewdness with a child if he or she:
1. Is 18 years or older and willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child; or
2. Is under the age of 18 years and willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child.
Except as otherwise provided in subsections 4 and 5, a person who commits lewdness with a child under the age of 14 years is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may by further punished by a fine of not more than $10,000.
Except as otherwise provided in subsection 4, a person who commits lewdness with a child who is 14 or 15 years of age is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years and may be further punished by a fine of not more than $10,000.
Except as otherwise provided in subsection 5, a person who commits lewdness with a child and who has been previously convicted of:
1. Lewdness with a child pursuant to this section or any other sexual offense against a child; or
2. An offense committed in another jurisdiction that, if committed in this State, would constitute lewdness with a child pursuant to this section or any other sexual offense against a child,
Is guilty of a category A felony and shall be punished by imprisonment in the state prison for life without the possibility of parole.
A person who is under the age of 18 years and who commits lewdness with a child under the age of 14 years commits a delinquent act,
For the purpose of this section, “other sexual offense against a child” has the meaning ascribed to it in subsection 6 of NRS 200.366..

Isn’t a minor anyone under 18? Why does the statute say under 16?

While it is true that 18 is the age of adulthood, Nevada has set the age of consent at 16, meaning that once some turns 18, they are deemed an adult with regard to their sex life. As a result, a 16-year-old who is the victim of lewdness would find the perpetrator charged under the laws for Open or Gross Lewdness (a more detailed description of which can be found here.)

Since there is already a law relating to lewdness against adults, NRS 201.230, is simply a separate crime that deals specifically with committing the same acts against someone who has not attained the age of legal consent.

So what is the definition of Lewdness with a child under 16?

“Lewdness” in this context is slightly different than in the context of the similar crime of “Open or Gross Lewdness”. In the context of “lewdness with a child under 16,” “lewdness” refers to committing a lewd or lascivious act on someone under 16, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of either the child or the adult.

Essentially, this means that an adult cannot touch anyone under 16 for any sexual purpose whatsoever. Generally speaking, the law applies to the touching of a child’s sexual organs. However, that is not an absolute necessity to the crime. Any touching that is done with a sexual intent can qualify as a lewd touching. In other words, touching a child in a way that is completely innocuous to the child, but which satisfies a fetish of the adult can still be considered a violation of NRS 201.230.

Is there anything else I should know?

Yes, it is important to understand that NRS 201.230 includes a section for minors who commit lewdness on other minors. If the person being accused of the lewd act has not yet reached 18 years of age, they can still be charged with committing a lewd act with a minor, but only if the minor is under the age of 14.

This means that 13-year-old who commits a lewd act against another 13-year-old can still be charged with violating NRS 201.230.

One other important thing to understand about lewdness with a minor is that the statute of limitations is extended beyond the usual 3-4 years that most crimes carry. The purpose of this is that children often do not realize that what is happening to them is wrong. As a result, the victim of lewdness with a minor may not become aware that they were victimized until years later. The statute of limitations is therefore extended in two ways:

If the victim of lewdness with a minor discovers that they were victimized (or reasonably should have discovered) by the time they are 21, then they can press charges against the perpetrator;
Alternatively, if the victim does not discover that they were victimized, and had no reasonable reason to have discovered it, then the statute of limitations is extended until the victim’s twenty-eighth birthday.

It is not always easy to say when someone “reasonably” should have known that they were victimized. This part of the charges will be determined on a case-by-case basis by the judge or jury. Generally speaking, however, the judicial system is likely to err on the side of extending the statute of limitations considering the nature of the charges.

What is the difference between “Lewdness with a minor” and “statutory rape”?

The difference is essentially the difference in the type of touching that occurs. Statutory rape requires penetration of some kind, which includes:

Sexual Intercourse;
Anal Sex;
Oral Sex;
Penetration with fingers (“digital penetration”);
Penetration using a foreign object.

Consequently, if the sexual touching involved does not include penetration, then statutory rape is not likely to be charged, but lewdness with a child can be charged.

Moreover, if an adult first touches a minor and then during the same instance penetrates the minor in some way, then the adult can only be charged with one of the two crimes, most likely statutory rape, the greater of the two offenses. However, if there are instances of touching that are separate from the instance (or instances) of penetration, then both crimes can be charged.

Because of prosecutors’ ability to only charge one or the other offense, lewdness with a minor is sometimes seen as a lesser-included offense of statutory rape. While that is not technically true, for the purposes of understanding the two crimes, that factual analysis of the two crimes is similar to analyzing a crime and its lesser-included offenses.

Similarly, in situations where the prosecutor cannot find enough evidence to support a charge of statutory rape, they may agree to a plea bargain whereby the adult pleads guilty to lewdness with a minor in exchange for the prosecutor dropping the statutory rape charges.

What are the possible penalties?

As with many types of sexually related offenses, the penalties for Lewdness with a minor are determined by whether you have prior convictions for sexually related offenses, as well as the circumstances of your actions.

However, regardless of whether you are being charged with a first offense or subsequent offense, any conviction for lewdness with a minor will require registration on the Sex Offender Registry in addition to any other penalties as listed below. Because of the seriousness of the crime, Lewdness with a minor often requires lifetime registration, even for a first offense.

For a first time offender with a minor who is 14 or 15 years of age, then the accused will be charged with a category B felony, which carries with it:

Between 1 and 10 years in a Nevada State Prison; and
Possible fines up to $10,000.

If the minor in question is 13 your younger, then the lewdness with a minor charge will be a category A felony and will carry with it:

A life sentence in a Nevada State Prison, with the possibility of parole after ten years; and
Possible fines up to $10,000.

If the accused already has a prior conviction for a crime that is comparable to lewdness with a minor, whether that conviction was in Nevada or elsewhere, then a subsequent conviction, regardless of the minor’s age, will carry a possible sentence of:

A life sentence in a Nevada State Prison, without the possibility for parole; and
Possible fines up to $10,000.

Are there any Defenses?

Yes, of course there are. Some of the possible defenses include:

Lack of Sexual Intent – As noted above, one of the elements to the crime of Lewdness with a minor is that the “touching” involved is done with a sexual intent. In other words, an adult with a foot fetish can be charged with lewdness for playing with a minor’s feet. However, if the prosecutor cannot show that the “touching” was done with any sexual intent, then the charges should be dropped or dismissed. However, it is possible that other charges may attach, such as battery.
False Allegations – As noted above, children are not always aware of what they are doing, or of what is being done to them. There have been numerous instances where one parent will coach their child, whether intentionally or not, to say things about the other parent that are untrue. Similarly, the child may say something that is misinterpreted or misunderstood by another adult who then calls the police and presses charges. An experience defense attorney can often discover the root of such false allegations and can get the charges against you dropped or dismissed.
Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.

What should I do if I’ve been charged with Lewdness with a minor?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.