What Is Considered “Sexual Battery”

Sexual battery is a crime under penal ocde 243.4 which involves a person either overpowering another for sexual gratification or touching another person’s intimate parts without their consent.

It is an offense that does not require sexual intercourse or penetration.

Definition of Penal Code 243.4

Penal Code 243.4,¹ prohibits anyone from:

• Touching² the intimate parts³ of another person against their will⁴.
• For purposes of sexual gratification, arousal or sexual abuse.

What Does the Prosecutor Have to Prove For a Conviction?

To prove sexual battery under penal code 243.4 pc the prosecutor must establish several elements.  He/she must prove that the defendant touched the victim’s intimate parts while the defendant or another person restrained the victim.

The touching required may occur through direct contact to the victim’s skin or by indirect contact through the victim’s clothing.  The prosecutor must also prove that the touching was against the victim’s will.

What is the Definition of Touching?

To “touch” means to make contact with an intimate part. The touching can be directly on the intimate part⁵ or on the clothing of the defendant or of the victim⁶.

To be charged with a felony, the touching must be on bare skin. Even if the touching involved a victim who was unlawfully restrained or institutionalized and mentally or physically incapacitated, the touching must be on the bare skin. If on the clothing, it is considered misdemeanor sexual battery.

What if The Touching Was An Accident?

It is required for sexual battery that the touching is for the purpose of

• Sexual arousal
• Gratification, or
• Abuse.

This means that the touching was made to bring about sexual gratification for personal pleasure or in the belief that the touching would sexually arouse the victim.  If for sexual abuse the touching is intended to cause the victim pain or discomfort.

If the touching were accidental, this would be a defense rebutting the required intent for a sexual battery conviction.

What is Considered an Intimate Part?

An intimate part involves the following body parts:

• Breast
• Buttock
• Penis
• Anus
• Groin

Against The Victims Will

The touching of another person’s intimate part must be against that person’s consent or will. It does not matter if you have an intimate relationship with the victim since consent is not presumed at all times and can be withdrawn if communicated.

Consent to an act means that the person giving it did so willingly and voluntarily with full knowledge of the intent of the defendant and the nature of the act. That is, the person knew that you were touching him or her for the purpose of sexual gratification and it was allowed.

If there is fraud or misrepresentation in gaining consent, then the consent is negated⁷.

With The Purpose Of Sexual Abuse, Arousal Or Gratification

One purpose of the touching must have been to sexually abuse the victim⁸. In this context, it means to touch the person for the purpose of physical harm, humiliation or intimidation. If the intent of the purpose was not sexual abuse but the defendant intentionally injured an intimate part, the offender could still be charged with sexual battery.

Arousal or gratification can be implied by the demeanor of the defendant, comments that are made or if the sexual member is excited or results in orgasm. However, the offender need not achieve sexual arousal or gratification to be guilty of this offense.

Unlawful Restraint

To be restrained against your will can be achieved by the act, comments or authority of the offender. Unlawful restraint does not necessarily mean that the victim was tied up or handcuffed or otherwise physically restrained. By blocking the victim’s ability to escape or intimidating the victim so as to make him/her fearful of leaving constitutes unlawful restraint as well.

Using your authority status to prevent someone from leaving can constitute unlawful restraint. An example is a supervisor at your work or a teacher or a coach at your school who threatens to fire you, reduce your grade or kick you off an athletic team unless you stay in the room and submit to a sexual act or intimate touching.

Lawful restraint refers to consenting to being restrained or forced to if lawfully arrested by a police officer.

Legal Defenses to Sexual Battery

Victim’s Consent

The main defense to sexual battery or to most sex crimes is that the alleged victim consented. It is also a defense if you had a reasonable belief that the victim gave consent⁹. This can be inferred by the victim’s comments, demeanor or failure to object, unless the consent was the result of misrepresentation, intimidation or coercion. Also, an unconscious person is incapable of consenting as is someone who is under the influence of a drug, such as “date rape” drugs. A person under the influence of alcohol may not be capable of giving consent though they may need to be heavily intoxicated.

Date rape or predator drugs have the effect of causing victims to become disoriented or to pass out. Examples of date rape drugs include Rohypnol, GHB or gamma hydroxybutyric acid that is also known as liquid ecstasy, andketamine or Special K. MDMA or ecstasy is a common date rape drug.

A person may withdraw consent at any time. If dating partners are engaged in heavy petting or fondling but one person decides that it is enough and communicates this to the other partner, then that party must cease. His or her refusal to accept the withdrawal of consent  may be guilty of sexual battery. And, if there is any restraint involved¹⁰ and the touching is on the bare breast or other bare intimate part, it is felony sexual battery.

False Accusation

Victims or alleged victims of sexual battery sometimes do make false accusations.

Some victims suffer from some form of mental illness or make such allegations to gain attention. In other cases, a victim may be seeking revenge or retribution against an ex-dating partner or spouse. It may be to extort funds from that person or to gain an advantage in a child custody dispute.

Lack Of Evidence

Some cases of alleged sexual battery are dismissed for lack of evidence. If someone makes an allegation but there are no witnesses or visible signs of bruising or other physical contact on the accuser, then a prosecutor may elect to not charge the alleged offender.

Penalties

As indicated, sexual battery can be charged as either a misdemeanor or felony depending on whether certain acts were performed such as unlawful restraint and touching of bare skin. If charged as a misdemeanor, you face:

Penalties	Misdemeanor	Felony
Fine	Up to $2000 or up to $3000 if the victim was the defendant’s employee	A fine up to $10,000
Probation	Summary or informal probation for up to 5 years	Formal probation
Jail Or Prison	Up to 6 months in county jail but up to 1 year if there are aggravating factors present	2, 3 or 4 years in state prison11
Sex Offender Registration	Yes	Yes

Summary probation typically means that you do not have to report on a regular basis to a probation officer and generally entails no other conditions except for not committing any further crimes and having to perform community service in some cases. Some conditions may require you to attend certain classes. For a person who is convicted of misdemeanor sexual battery, you may be required to:

• Attend a sexual batterers’ class
• Perform community service
• Complete a program for those who exhibit compulsory behavior surrounding sexual issues
• Register as a sex offender under Penal Code 290

If there are aggravating factors as indicated above such as unlawfully restraining the victim, misrepresenting the touching as therapeutic or committing the act on an institutionalized person who is mentally or physically incapacitated, then the prosecutor has discretion in charging the defendant with a misdemeanor or felony.

Great Bodily Injury Sentencing Enhancement

If the victim suffered great bodily harm from the sexual contact, then you face an enhanced sentence of 3 to 5 years in state prison to be served consecutively. Great bodily harm refers to an injury that is significant and causes a prolonged or permanent impairment. For example, if the victim’s breast was cut and required extensive suturing, it could qualify as great bodily harm. This is a determination made by a jury or judge if the finder-of-fact.

Related Articles Which May Be Of Interest To You:

• How The Probation Process Works In California
• Failure To Register As A Sex Offender Under Penal Code 290 
• Ending Sex Registration Under Megans Law
• 5 Things You Need To Know About Great Bodily Injury

Difference Between Sexual Battery And Rape

Sexual battery and rape are similar except that rape, found under Penal Code 261, requires the element of sexual intercourse.

Rape is always charged as a felony and constitutes a “strike” under the state’s three-strikes law, which also distinguishes it from sexual battery.

Related offenses include forcible oral copulation (PC 288a) and forcible penetration with a foreign object (PC 289).

Charge	Sexual Battery	Rape
Intercourse	No	Yes
Felony	Can be a misdemeanor or felony	Yes
Strike Under 3 Strikes Law	No	Yes

Frequently Asked Questions

Changes to Sexual Assault Laws Since January 1, 2017

There are always new laws that go into effect at the start of each new year. Beginning on January 1, 2017, if you sexually assault an unconscious person or person who is severely intoxicated, you are not eligible for probation. This means you must serve time in jail or prison.

The California Assembly bill known as AB2888 also provided clarification to the issue of consent by stating that consent to sex cannot be given by an unconscious person or one who is incapacitated by drugs or alcohol.

AB701 expanded the definition of rape so that any kind of nonconsensual sexual assault be considered rape and that offenders in most cases will receive a mandatory minimum prison sentence. Previously, offenders who had sex with an unconscious or heavily intoxicated person who was not capable of giving consent received a lesser sentence than an offender who forcibly raped a conscious person.

These changes were in response to the infamous Brock Turner case. Mr Turner was a Stanford University swimmer who had nonconsensual intercourse with an unconscious woman and received a 6-month prison sentence and was released after 3-months, though he was required to register as a sex offender. The outrage over the sentence prompted the changes in the state’s rape laws.

Sex Offender Registration

The Sex Offender Tracking Program at the California Department of Justice (DOJ) maintains the registered sex offender database.  By law, persons convicted of specified sex crimes are required to register as sex offenders with a local law enforcement agency. Prior to release from prison, jail, a mental hospital, or on probation, sex offenders are notified in writing of their duty to register, and a copy of the notification form is forwarded to DOJ. When a sex offender is released into the community, the agency forwards the registration information to DOJ.

Registered sex offenders are required to update their information annually, within five working days of their birthday. Some sex offenders must update more often: transients must update every 30 days, and sexually violent predators, every 90 days. The Sex Offender Tracking Program keeps track of the next required update, and if a registered sex offender is in violation of the update requirements, the Internet web site will show the registrant as being in violation.

1. Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). Penal Code 243.4 (a). [↩]
2. As used in this subdivision, “touches” means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim. Pen. Code, § 243.4(e)(2). [↩]
3. “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. Pen. Code, § 243.4(g)(1). [↩]
4. An act is done against a person’s will if that person does not consent to the act. In order to consent a person must act freely and voluntarily and know the nature of the act. CALCRIM 938 [↩]
5. Defendant Must Touch Intimate Part of Victim. People v. Elam (2001) 91 Cal.App.4th 298, 309–310 [110 Cal.Rptr.2d 185]. [↩]
6. Defendant Need Not Touch Skin. People v. Dayan (1995) 34 Cal.App.4th 707,716 [40 Cal.Rptr.2d 391] [↩]
7. A person is not conscious of the sexual nature of the act if he or she isnot aware of the essential characteristics of the act because the perpetrator fraudulently represented that the touching served a professional purpose when it did not. CALCRIM 937 [↩]
8. Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205 [224 Cal.Rptr. 467] [↩]
9. Defense of mistaken but honest and reasonable belief in consent if there is substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not. (See People v. Andrews (2015) 234 Cal.App.4th 590, 602[184 Cal.Rptr.3d 183]; following People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542 P.2d 1337]. [↩]
10. Otherwise Lawful Restraint for Unlawful Purpose. People v. Alford (1991) 235 Cal.App.3d 799, 803–804[286 Cal.Rptr. 762] [↩]
11. Penal Code 243.4 (a). [↩]