Sexual Battery

June 21, 2020 48299488 0 Comments

Sexual battery occurs when a person touches an intimate part of another person, against that person’s will and for the specific purpose of either sexual arousal or gratification, or sexual abuse (Penal Code section 243.4(e)(1)).  Similar to the crime of simply battery, this offense does not require any type of actual or physical injury to the victim and can be committed even when the defendant and victim are in an existing, sexual relationship. 

Touching” occurs when the defendant directly touches the victim’s skin or indirectly touches the victim through his/her clothing.  The “intimate part” is defined as a woman’s breast, or anyone’s anus, groin, sexual organ, or buttocks.  “Against the will” can mean the victim did not consent to the touching or was not aware of the nature of the act to which she/he was consenting. “Sexual abuse” is defined as an intent to injure, hurt, humiliate or intimidate the victim, or to cause the victim to suffer pain in his/her intimate part.    


Defenses to sexual battery may include;

  • actual or implied consent
  • unintentional or accidental touching
  • false allegation

For example:

  • “Without saying anything, the victim removed her blouse and bra while the defendant was kissing her”
  •  “While reaching across the patient’s lap to grab a cleaning tool, the dentist’s hand accidentally brushed against the victim’s groin area”
  • “Seeking to increase her alimony payments from ex-husband, victim falsely claims he grabbed her breast”   

Needless to say, it is very important for a defendant to communicate every detail of the encounter between he/she and the victim.  The “context” in which the sexual battery is alleged to have occurred may have tremendous impact in the client’s favor and perhaps cause the charge to be dismissed or even reduced to a “simple battery” (without sexual overtones!).  In cases, where a client bears criminal responsibility for the contact, the penalties will depend on the circumstances involved.

Aggravating Factors, Punishment & Sex Registration

In cases where the defendant has no relevant criminal history, the charge will likely be a misdeamenor and the penalties will usually include informal probation, for up to five years.  Also, the defendant may serve up to six months of custody in the county jail, with fines/fees and restitution to the victim, if any.  A criminal protective order or “stay away” may also be imposed.  In cases where there are aggravating circumstances involved, the penalties will be higher.

Aggravating circumstances (Penal Code section 243(a), (b),(c), and (d)) include the victim who is:

  • unlawfully restrained
  • institutionalized for medical treatment and seriously disabled/medically incapacitated
  • unaware of the act because the defendant falsely represented the “touching” served a professional purpose
  • being made to masturbate or touch an intimate part of the defendant or his/her accomplice

If any of the above aggravating circumstances apply, and/or the defendant has a relevant criminal history, the prosecutor could still charge the defendant with a misdemeanor (now up to one year of county jail) or a felony, punishable by formal probation and up to one year of custody in the county jail, as well as all the other probationary terms included with a misdemeanor.  If felony probation is denied, the defendant may serve 2 years, 3 years, or 4 years of custody in state prison.

Finally, as of 2017 in California, a new three-tiered system (SB 384) exists for designating for how long a defendant is required to register as a sex offender.  For misdemeanor or felony sexual battery, the registration requirement with local law enforcement is 10 years (Penal Code section 290).  Failure to register can result in either a new misdemeanor or felony offense, punishable up to one year in county jail or 3 years in state prison.