Sexual Battery

WHAT DOES THE PROSECUTOR HAVE TO PROVE

To prove you guilty of sexual battery under Penal Code section 243.4, the prosecutor must establish beyond a reasonable doubt that a) you touched the intimate part of another person, b) you did so against that person’s will or without his or her consent, and c) for the purpose of either sexually arousing or gratifying yourself, or sexually abusing the person.  Note that the prosecutor need not prove that you had sexual intercourse or engaged in sexual penetration with the alleged victim.  Note also that you can be charged with sexual battery even if you have been involved in a long-term sexual relationship with the alleged victim.

CLOSER LOOK AT THE ELEMENTS

“Touch”

For misdemeanor sexual assault, “touch” means making contact with the intimate part of another individual either directly or through the alleged victim’s or your clothing.  For example, Jacks is a dental hygienist.  While teaching female patients how to floss, Jack robs his hands against their breasts over their clothes to sexually arouse himself.  Jack is guilty of sexual assault even though the touching took place over the victims’ clothes.

However, for felony sexual assault, the touching must be done on the alleged victim’s bare skin.  In the previous example, if Jack reaches into the victims’ shirts to touch their breast, Jack can be charged with felony sexual assault.

“Intimate part”

Under the code section, an intimate part includes anus, groin area, any sexual organ, or buttocks

“Against the will of the other person or without their consent”

If the alleged victim did not consent to the act, then you acted against his or her will.  Someone consents to a sexual act when he or she freely and voluntarily, with full knowledge of the nature of the act, engages in the act.  Note that consent in and of itself does not protect you from a charge of sexual battery.  The consent must have been validly obtained.  If you used fraud to obtain the consent, then the consent is not valid.

“Sexual Abuse”

If you committed the sexual act with the intent of humiliating, annoying, harassing, or causing pain to the victim, you intended to sexually abuse the victim.   The intent to sexually abuse is enough to fulfill this element of the code, even if the sexual act was not committed for your own sexual gratification or pleasure.

AGGRAVATED SEXUAL BATTERY

If you unlawfully restrained the alleged victim in order to commit the sexual battery, then you can be charged with aggravated sexual battery.   You unlawfully restrain someone when you use words, acts, or any form of authority to inhibit their movement.  The force used must be in addition to that used to commit the sexual battery.   For example, Jack, the dental hygienist, locks Jill, a patient, in the dental room.  Jack then physically overpowers Jill by pinching her against the wall.  Then, he fondles her breasts.   Jack used physical restraint to force Jill into a corner and commit sexual battery upon her.  Jack is therefore guilty of sexual battery.

Aggravated sexual battery also occurs in the following circumstances: the victim is institutionalized and is disabled or medically incapacitated; the victim is unaware that the perpetrator is committing sexual battery against her because he has misrepresented to her that the touching is for a professional purpose; the victim is forced to touch the perpetrator’s intimate parts.

DEFENSES TO SEXUAL BATTERY UNDER PENAL CODE SECTION 243.4

  • You acted with the victim’s consent

If the alleged victim expressly consented to the sexual act or you actually and reasonably believed that you were acting with the alleged victim’s consent, you cannot be found guilty of sexual battery.  For example, Jack is driving Jill home after a date.  When they get to Jill’s house, Jack reaches over and begins to kiss Jill. He then grabs her breasts and begins to fondle them.  Jill does not object.  Jack reasonably believes that Jill has consented to the fondling.

  • Insufficient evidence: the prosecution has not proved every element of the crime

Unless the prosecutor proves every element of the offense, you cannot be found guilty of sexual battery.  For example, it is not enough for the prosecution to prove that you touched the intimate parts of the alleged victim.  He or she must in addition prove that this was a) without consent and b) for purposes of sexual gratification or sexual abuse. 

  • You were falsely accused

Because allegations of sexual battery do not require physical proof or injury, false accusations are made all the more possible and likely.  This defense often coincides with the defense of insufficient evidence.  Often, there is insufficient evidence because the alleged victim fabricated, distorted, or exaggerated the details.

PENALTIES FOR SEXUAL BATTERY

Penalties for misdemeanor sexual battery

If you are convicted of a misdemeanor sexual battery (that is, battery without any of the aggravating factors discussed before), you face a maximum of six months in county jail, a maximum fine of $3,000, and informal or summary probation for up to 5 years which might include community service and sexual batterer’s education classes.  In addition, you will be required to register as a sex offender.

Penalties for aggravated sexual battery

If any of the aggravating factors discussed before apply to you, then you will be charged with aggravated sexual battery.   Aggravated sexual battery is a wobbler, which means that it can be charged as a misdemeanor or a felony, depending on the acts of the alleged offense and your criminal history.  If you are charged with a misdemeanor sexual battery, the above penalties apply except that you will be subject to an increased county jail sentence of 1 year.   If you are charged with a felony sexual battery, you will be subject to 2, 3, or 4 years of state prison, and an additional 3 to 5 years of state prison if the alleged victim suffered great bodily injury; a maximum fine of $10,000; and registration as a sex offender.

HOW CAN WE HELP

Actual Case: In people v. Saul R. (Case No. GA089136), the defendant, Saul R., was charged with felony sexual battery.  Mr. R. was a dental hygienist.  The prosecution alleged that Mr. Saul fondled 15 victims’ breasts while teaching them how to floss.  The prosecution also alleged that Mr. R had used unlawful restraint by locking the door in the dental room and reaching over the victims’ chests to prevent them from moving during the alleged sexual act.  The prosecution was greatly offended by Mr. R’s actions and wanted a significant amount of state prison.  Negin worked the case for 11 months.  In those 11 months, Negin’s investigator interviewed some of the victims who reported that Mr. R. had touched them but that they did not see him lock the door and that they did not feel they were unduly restrained.  Negin also had Mr. R. evaluated by a psychologist, who provided a professional assessment of Mr. R’s candidacy for probation.  Through relentless lawyering, Negin ultimately got probation for Mr. R.

Negin’s approach: Negin will closely examine your case for not just any and all potential defenses, but any and all mitigating factors.  This thoroughness is what allowed Negin to earn probation for Mr. R. on an otherwise state prison case.

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