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What is Sexual Battery?

As mentioned throughout this website, the penalties associated with the crimes of “Battery” and “Assault” vary depending on how the crime was committedi, where the crime was committed, and who the Victim of the crime isii. Sexual Battery is another variation of the general crime of battery, which is set forth in California Penal Code §242. The penalties for the crime of Sexual Battery are set forth in California Penal Code §243.4. Much like other Battery charges, certain forms of sexual battery are treated as what is known as a “wobbler offense.” This means that depending on the facts of the case, the Prosecutor can pursue the charges against the Defendant as either a misdemeanor, or a felony. A point that must be stressed, is that much like general battery, a key aspect Sexual Battery is that the identity of the Victim, the way the Victim was sexually battered, and where the Victim was sexually battered will dictate the punishments the Court will impose if the Defendant is found guilty if Sexual Battery.

If you or a loved one has been charged with Sexual Battery it is imperative that you contact Los Angeles Criminal Lawyer immediately. The benefits of having a skilled attorney in your corner at the outset cannot be understated. During your FREE initial consultation with one of our experienced attorneys, you will have an opportunity to tell us what happened while the facts of the incident are still fresh in your mind. There are substantial benefits to recounting the events leading up to the crime you have been accused of while they are still easily remembered. The most important benefit of course, is that the information will be more accurate and complete than it would have been if you were required to recount the incident months after the fact. While many facts surrounding an incident might seem insignificant to the lay person, to the skilled attorney every minute detail has a bearing on critical aspects of the Prosecution’s case against you. Your attorney will utilize this information to create what is known as a “theory of defense”, which will be tailor-made to you and your case.

Once your LACL attorney has crafted the strongest legal argument in your defense, they will approach the District Attorney who is prosecuting your case with that argument and attempt to persuade them to dismiss the charges against you, or reduce the charges against you. In the event that your LACL attorney’s efforts with the District Attorney do not succeed, your attorney will present your case to the jury during your trial, highlighting the relevance of every detail you provided in your initial consultation. Ultimately, even the most skilled attorneys cannot win every case. In the event that you are convicted, and your case proceeds to the sentencing phase, your LACL attorney will advocate vigorously for a reduced sentence, and in some circumstances, alternate sentencing. The description above is just an overview of what your LACL attorney can do for you, but it should highlight the substantial benefit to the outcome of your case if you contact Los Angeles Criminal Lawyer immediately after you have been arrested. There are other benefits to having a LACL attorney representing you in your criminal trial; notably, their in depth understanding of every aspect of criminal law.

In order to be convicted of “sexual battery” the Prosecutor must prove every element of the crime to the jury, beyond a reasonable doubt. There are many different ways to define what the Prosecutor must prove, but CALCRIM 935 and 938iii set forth the elements of the crime of “sexual battery” as:

  1. The Defendant touched, or caused the Victim to be touched;
  2. The Victim was touched in an “intimate area”;
  3. The touching was without the Victim’s consent; AND
  4. The Defendant touched the Victim in an “intimate area”, or caused the Victim to be touched in an “intimate area” for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

As a matter of Constitutional law, a Defendant cannot be convicted of a crime unless the Prosecutor can prove each and every element beyond a reasonable doubt. The basis for this can be found in the Due Process Clause of the United States Constitution, which prohibits the deprivation of life, liberty, or property without due process of law. This clause of the United States Constitution sets the burden the Prosecution must meet very high because it is a fundamental concept that the law would rather see nine guilty people walk free than one innocent person go to jail. This means that if the Prosecution fails to prove even one element of Sexual Battery, the Defendant cannot be convicted of the crime. Naturally, a common line of argument made by most defense attorneys is designed to negate one or more elements of the crime their clients are accused of. At Los Angeles Criminal Lawyer, we have decades of combined experience representing clients who have been accused of criminal conduct exclusively. Our attorneys have an intimate understanding of each element of “sexual battery.” Utilizing that understanding of the law, LACL will provide you the best opportunity possible to defeat the criminal charges against you. The remainder of this article will discuss: (1) The elements that the Prosecution must prove to convict a Defendant of “sexual battery”, (2) The penalties associated with various forms of “sexual battery”; and (3) what Los Angeles Criminal Lawyer can do to help an individual who has been accused of “sexual battery.”

What Does it Mean to “Touch” Another Person?

In contrast to other battery charges, sexual battery dispenses with any discussion of the “extension of the person” theoryiv as it relates to the Victim because it requires that an individual be touched in a specific location. As such, this portion of the article will discuss the two ways a touching can occur: directly, or indirectly.

The “Extension Theory”

The “extension theory”, which is applied by Californiav, holds that anything connected to a person is deemed to be a part of a person for purposes of battery charges. This concept was specifically developed to make arguments that the Defendant did not actually touch the Victim meritless. As mentioned above, the “extension theory” is inapplicable to the Victim in a sexual battery case, because the statute specifies where the Victim needs to be touched, an “intimate body part.”

EXAMPLE 1:

Dan holds Vivian down, while his friend Deeno penetrates Vivian’s vagina with a sex toy. Deeno can be convicted of sexual battery because the sex toy is deemed to be an extension of Deeno, the vagina is an intimate body part, and it was without Vivian’s consentvi.

There are two additional ways a Defendant can be found to have touched the Victim, or caused the Victim to be touched: directly, and indirectly.

Direct Touching

Direct touching occurs when the Defendant themselves touches the Victim on an “intimate body part.”

Indirect Touching

Indirect touching occurs when the Defendant does some act which directly causes another object to touch the Victim on an “intimate body part.” While it is not a common occurrence, this could satisfy the first element of sexual batteryvii.

In a practical sense, proving that the Defendant touched the Victim will is not difficult. However, sexual battery is different from other battery charges because the Prosecution must prove that the Defendant had a specific intent when he touched the Victim, and that the location touched was an “intimate body part.”

What is an “Intimate Body Part”?

California Penal Code §243.4(g) (1) defines an intimate body part as the butt, anus, groin, or sexual organ of any person, as well as a female’s breasts.

Without the Victim’s Consent

In addition to proving that the Defendant touched the victim on an “intimate body part”, or caused the victim to be touched on an “intimate body part” the Prosecution must also prove that the touching occurred without the consent of the Victim. In some cases, the Defendant will believe that the Victim had consented to the touching, which makes this element of the crime a frequent point of contention in a criminal trial.

There are several situations where a Victim’s consent is ultimately ineffective. California requires that the victim voluntarily, knowingly, and freely cooperates in the act of touching their “intimate body part.” This means that if the Victim that if the Victim is legally incapable of giving consent, even though they consented, the act will be deemed to be against their will. Examples of someone who is legally incapable of providing consent include: (1) a Victim who is disabled in a fashion that makes her unable to understand the nature of what she is consenting to, (2) a Victim whose mental condition makes her incapable of understanding the act she is consenting to, (3) a Victim who is so intoxicated that she is unable to understand what she is consenting to, or is deemed incapable of consenting as a result of the intoxication; and (4) a Victim who gave consent, but subsequently became unconscious. Further, since the Victim’s consent must be given both freely and voluntarily, and type of fraud, misrepresentation, of false representation will render consent invalid for purposes of sexual battery.

EXAMPLE:

Dan snuck into Vivian’s room one evening while she was asleep next to her husband Bill. Bill and Vivian had been celebrating an anniversary all day; Bill was sound asleep and Vivian was disoriented. Believing Dan to be Bill, Vivian engaged in intercourse with Dan. Dan can be convicted of both rape and sexual battery. Vivian’s consent was not knowingly and voluntarily because Dan attempted to convince Vivian that he was in fact Bill, Vivian’s belief that Dan was Bill was the basis of her consent. Therefore, Dan obtained consent by a misrepresentationviii

A common defense to the Prosecutor’s assertion that there was no valid consent is that the Defendant reasonably believed that the Victim had consented to the touching; if the jury is convinced of this fact, the Defendant cannot be convicted of sexual battery. As mentioned above, the due Process Clause of United States constitution places the burden of proof on the Prosecution to show that the Defendant did not reasonably believe that the Victim had consented to the touching.

The final element the Prosecution must show in order to obtain a conviction for sexual battery is the intent of the Defendant at the time of the alleged sexual battery.

For the Purpose of Sexual Arousal, Sexual Gratification, or Sexual Abuse

Unlike other variations of battery, the crime of sexual battery is a “specific intent crime.” This is different from a “general intent crime” because the Defendant must have a specific purpose for engaging in their conduct, as opposed to the intent to perform the act. For sexual battery, the touching of an “intimate body part” on the Victim must be accompanied by an intent to obtain sexual arousal or sexual gratification. Alternatively, the intent may be to sexually abuse the Victim.

The intent to sexually abuse the Victim is defined as intent to humiliate, intimidate, hurt, injure, or cause pain to the Victim’s “intimate body part.”

If the Prosecution has proven every element of sexual battery: (1) The Defendant touched the victim, or caused the victim to be touched, (2) the touching occurred an “intimate body part” of the Victim, (3) the touching occurred without the consent of the Victim; and (4) the touching was for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, the Defendant may be convicted of sexual battery. If the Defendant is convicted of sexual battery, the trial will proceed to the sentencing phase. Having an LACL attorney present during this stage will allow your attorney to advocate for the lowest penalty available by raising arguments to mitigate the crime the Defendant has been convicted of.

I Have Been Convicted of Sexual Battery, What Penalties Could I Face?

As mentioned at the beginning of this article, the crime of sexual battery is known as a “wobbler offense” in California. This means that the Prosecution can choose to bring a sexual battery charge against the Defendant as a misdemeanor or a felony, depending on the facts surrounding the crime. The penalty associated with the crime of sexual battery depends on how the sexual battery was performed, who the Victim of the sexual battery is, and where the sexual battery took place. If there are no additional facts, or charges, present, a sexual battery will be charged as a misdemeanor.

California Penal Code §243.4(a)

If you are convicted of a misdemeanor sexual battery, where the Victim was restrained by the Defendant or an associate, you will face incarceration of up to one (1) year in county jail and/or a fine of up to two-thousand ($2,000) dollars.

If you are convicted of a felony sexual battery, where the Victim was restrained by the Defendant or an associate, you will face incarceration ranging from two (2), three (3), or four (4) years in state prison and/or a fine of up to ten-thousand ($10,000) dollars.

California Penal Code §243.4(b)

If you are convicted of a misdemeanor sexual battery and the Victim is both: (1) medically incapacitated or seriously disabled, and (2) institutionalized, or hospitalized for the purpose of medical treatment, you will face incarceration for a period of up to one (1) year in county jail and/or a fine of two-thousand ($2,000) dollars.

If you are convicted of a felony sexual battery and the Victim is both: (1) medically incapacitated or seriously disabled, and (2) institutionalized, or hospitalized for the purpose of medical treatment, you will face incarceration for a period ranging from two (2), three (3), or four (4) years in state prison and/or a fine of up to ten-thousand ($10,000) dollars.

California Penal Code §243.4(c)

If you are convicted of a misdemeanor sexual battery and the Victim is unaware of that the act constitutes sexual battery as a result of you fraudulently asserting that the touching them was for a legitimate medical purpose, you will face incarceration for a period of up to one (1) year in county jail and/or a fine of two-thousand ($2,000) dollars.

If you are convicted of a misdemeanor sexual battery and the Victim is unaware of that the act constitutes sexual battery as a result of you fraudulently asserting that the touching them was for a legitimate medical purpose, you will face incarceration for a period ranging from two (2), three (3), or four (4) years in state prison and/or a fine of up to ten-thousand ($10,000) dollars.

California Penal Code §243.4(d)

If you are convicted of a misdemeanor sexual battery where you attempted to touch an intimate body part of, or masturbate in front of any individuals described in §243.4(a)-(c), you will face incarceration for a period of up to one (1) year in county jail and/or a fine of two-thousand ($2,000) dollars.

If you are convicted of a felony sexual battery where you attempted to touch an intimate body part of, or masturbate in front of any individuals described in §243.4(a)-(c), you will face incarceration for a period ranging from two (2), three (3), or four (4) years in state prison and/or a fine of up to ten-thousand ($10,000) dollars.

California Penal Code §243(e) (1)– Sexual Battery Without Enhancement (Always a misdemeanor)

If you are convicted of a sexual battery without an enhancement, you will face incarceration for a period of up to six (6) months in county jail and/or a fine of two-thousand ($2,000) dollars.

If you are convicted of a sexual battery without an enhancement, but you are the employer of the Victim you will face incarceration for a period of up to six (6) months in county jail and/or a fine of three-thousand ($3,000) dollars.

California Penal Code §243(j)– Mandatory Felony Charge

If you have previously been convicted of a felony sexual batteryix and the Victim is a minor, you will face incarceration for a period ranging from two (2), three (3), or four (4) years in state prison and/or a fine of up to ten-thousand ($10,000) dollars.

If you have been convicted of a felony sexual battery, where the Victim suffered serious bodily injury, you will face an additional three (3) to five (5) years of incarceration in state prison.

In addition to the incarceration, a Defendant who has been convicted of sexual battery may receive “summary probation” for a period of up to five (5) years, the terms of which could include completion of a program designed to educate the Defendant on battery, completion of a program designed to assist Defendants with issue of sexual abuse or sexual compulsion, community service, and being entered into the sex offender registry.

I Have Been Accused of Sexual Battery, How Can Los Angeles Criminal Lawyer Help Me?

Being accused of any crime can be a frightening ordeal, being accused of sexual battery can be life-changing. In addition to the reality that an individual may face felony charges, being forced to register as a sex offender can have a life-long impact. A criminal conviction will remain on your criminal background for a substantial period of time, and will be observable by anyone who conducts what is known as a “background check.” Employer’s frequently perform a background check on individuals they are considering hiring. Many employers view a criminal conviction as a reason to not hire a person, especially if it is a felony conviction. Felony convictions also have the possibility of rendering you unfit for certain positions in the government.

Being forced to register as a sex offender can have far reaching effects as well, beyond the social stigma associated with the label. Everyone who searches the name of an individual who has been forced to register as a sex offender will easily be able to obtain that information. This can have an impact on your social life, employment, and subsequent dating life.

Having an attorney as soon as you are arrested will provide you the best opportunity to avoid these life-altering consequences. When you contact Los Angeles Criminal Lawyer, you will be given a FREE consultation where you will provide your attorney with all the information about the incident while it is still fresh in your mind You will be given the opportunity to ask your attorney the tough questions. At the end of your FREE consultation, you will be provided your attorney’s personal cell phone number, as well as their personal e-mail, and they will be available day or night to answer any questions or concerns you have about your case. Next, you LACL attorney will approach the district attorney in an attempt to dissuade them from pursuing charges against you, or persuade them to reduce the charges against you. In the event your LACL attorney is unsuccessful with the District Attorney, your LACL attorney will bring their considerable courtroom experience to bear, and present the most compelling case possible for your innocence to the jury. Your attorney will raise a number of defenses including:

  • You were wrongfully accused.
  • You reasonably believed the Victim gave consent

A frequent defense to sexual battery is that the Defendant reasonably believed that the Victim had given him consent; this usually goes hand in hand with the argument that the Defendant was wrongfully accused. If the jury believes that the Defendant’s belief that they had received consent was reasonable, the Defendant cannot be convicted.

  • Insufficient evidence.
  • Illegally obtained evidence
  • You did not touch the victim or cause the victim to be touched
  • You did not touch an intimate body part
  • The Victim was not one the individuals identified as needing special protection
  • The Victim was not institutionalized

In the event that you are convicted, your LACL attorney will advocate for a lesser sentence raising important issues such as:

  • You have a positive reputation in the community
  • You do not have any prior criminal convictions
  • Your prior relationship with the Victim
  • Your age
  • Your education
  • Your community ties

If you or a loved one has been accused of sexual battery, Los Angeles Criminal Lawyer understands the fear the accused must be feeling. Contact us today at 310-502-1314 for a FREE consultation with one of our experienced attorneys.


i For an example of a criminal charge based on how the Assault was carried out, see “Assault with a Deadly Weapon”. For an example of a criminal charge based on how the Battery was carried out, see “Battery Causing Serious Bodily Injury

ii For an example of a criminal charge based on who the Victim of the Assault was, see “Assault on a Public Official”. For an example of a criminal charge based on who Victim of the Battery was, see “Battery on a Peace Officer.”.

iii The Judicial Council of California Advisory Committee on Criminal Jury Instructions has drafted and approved jury instructions for every crime set forth in the California Penal Code (“CALCRIM”). Attorneys will frequently submit their own jury instructions, but the CALCRIM instructions provide excellent guidance as to what the Prosecution must prove in order to obtain a conviction.

iv Briefly, the law considers things attached to a person as an extension of that person. Thus, any contact with/by an extension of a person will be sufficient to satisfy the “other person” prong of other battery charges.

v The “extension theory” is applied by every state in the United States

vi Deeno will also be sentenced pursuant to California Penal Code 243.4(a)

vii The Prosecution would still have to prove that the touching occurred for the purpose of sexual arousal, sexual gratification, or sexual abuse; it is likely that a touching accomplished through indirect means would be pursued on the basis of a sexual abuse motive.

viii People v. Leal (2009) 180 Cal.App.4th 782, 785 [103 Cal.Rptr.3d 351, 354]

ix Since a sexual battery without an enhancement is always a misdemeanor, a prior conviction under §243.4(e) (1) will not trigger this mandatory felony charge. Further, for a battery with enhancements §243.4(a)-(d), the conviction must have been for a felony violation of those subsections.

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