Sexual Battery & Sexual Assault
California Penal Code 243.4 PC

Penal Code 243.4 PC, California's sexual battery law...alternatively referred to as California's sexual assault law...prohibits touching the intimate part of another person for purposes of sexual

  • gratification,
  • arousal, or
  • abuse.1

Sexual battery can be either misdemeanor or
felony sexual battery. Felony penalties may apply if the alleged victim:

  • was unaware of the nature of the act because s/he was fraudulently convinced that the touching was for professional purposes (like, for example, medical or therapeutic purposes),
  • was unlawfully restrained,
  • was institutionalized and either medically incapacitated or seriously disabled, or
  • was forced to masturbate or touch one of your intimate parts . . . or the intimate part of another person . . . under any of the above circumstances.2

Here are some examples of misdemeanor sexual assault:

  • Intentionally fondling a female stranger's breast without permission, or
  • Putting your hands on someone else's buttocks without first obtaining consent to do so.

And here are some examples of felony sexual assault:

  • Holding someone down while you unbutton their pants and put your hand inside their underwear,
  • A male therapist convincing his patient that she should allow him to fondle her bare breast in order to overcome her sexual inhibitions, and
  • Convincing an institutionalized mentally ill person to masturbate in front of you.
Legal Defenses

Some of the legal defenses that are available to fight a Penal Code 243.4 PC sexual battery charge include:

  • consent (that is, the alleged victim actually consented to the act),
  • insufficient evidence, and
  • false allegations / innocence.
Penalties

A conviction for misdemeanor sexual battery carries a maximum county jail sentence of either six (6) months or one (1) year, depending on the circumstances...and a fine of up to $2,000 (or up to $3,000 if the victim was your employee).3

A conviction for felony sexual battery subjects you to two, (2), three (3) or four (4) years in the California state prison and a maximum $10,000 fine.4

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And both misdemeanor and felony convictions for this California sex crime subject you to Penal Code 290 PC lifetime registration as a sex offender.5

In this article, our California criminal defense attorneys6 provide a comprehensive guide to understanding California's sexual battery laws by addressing the following:

1. Legal Definition of Sexual Battery in California

1.1. Touch

1.2. Intimate part

1.3. Against the will of the other person

1.4. Sexual abuse

1.5. Unlawful restraint

1.6. Accomplice

2. Legal Defenses

2.1. Consent

2.2. Insufficient evidence

2.3. False allegations

3. Penalties, Punishment and Sentencing for California Sexual Assault

3.1. Misdemeanor penalties for sexual battery

3.2. Felony penalties for sexual battery

4. Related Offenses

4.1. Penal Code 261 PC California's rape law

4.2. Penal Code 242 PC California's battery law

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

In addition, you may also find helpful information in our related articles on California Sex Crimes; California's Aiding and Abetting Laws; Common Legal Defenses to California Crimes; Legal Definition of a Misdemeanor in California Law; Explanation of California Probation and Probation Violation Laws; Penal Code 290 PC Registration as a Sex Offender; Legal Definition of a "Wobbler" in California Law; Legal Definition of a Felony in California Law; The Legal Definition of Great Bodily Injury/Harm California Penal Code 12022.7; Penal Code 261 PC California's Rape Law; California's Three Strikes Law and Proposition 36 Reforms; and Penal Code 242 PC California's Battery Law.

1. Legal Definition of Sexual Battery in California

Penal Code 243.4 PC defines sexual battery...alternatively referred to as sexual assault... as:

  1. touching the intimate part of another person,
  2. against that person's will,
  3. for the specific purpose of EITHER sexual arousal, sexual gratification, or sexual abuse.7

Unlike the California crime of rape under Penal Code 261 PC, sexual assault does not require that the offender engage in actual penetration or sexual intercourse.8 And it is important to understand that you can be convicted under California's sexual assault law even if you are involved with the accuser in an on-going sexual relationship.

The basic type of sexual battery described above is a misdemeanor (with penalties discussed in detail in Section 3 below).9

Example : Larry, a dentist, purposely brushes against his female patient's breasts when he reaches across them to grab his dental instruments.  He does this for sexual gratification. A prosecutor could charge Larry with misdemeanor sexual battery.
Example : Ryan and Kate, who live together, have been involved in a sexual relationship for six months.  One night following a fight, Kate begins fondling Ryan's penis (over his pants) trying to initiate sex.  Ryan tells her to stop, but she doesn't.  Kate could be charged with misdemeanor sexual assault.

Penal Code 243.4 PC also addresses more aggravated forms of sexual assault.  These types of sexual battery occur when the definition above is met...but, additionally, the alleged victim is:

  • unlawfully restrained...either by the person who is committing sexual battery or by someone else,10
  • institutionalized for medical treatment AND is seriously disabled or medically incapacitated,11
  • unaware of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose,12 or
  • made to masturbate or touch the intimate part of the perpetrator, an accomplice or another person...under any of the above circumstances.13

This last situation is the only scenario where California recognizes a sexual battery if the complaining witness is forced to touch your intimate parts instead of you touching his or hers.

Example : With the help of a friend, John unlawfully restrains Sally and forces her to touch his penis. John may be guilty of an aggravated California sexual battery.
BUT
Example : John is standing beside Sally on a crowded subway. He grabs her hand and, without her permission, places it on his penis.
In this case, John cannot be charged with California sexual assault because...unless one of the special situations just described applies... Penal Code 243.4 PC typically requires the perpetrator to touch one of the victim's intimate parts -- not the other way around.14 (John may still be charged with some other crime, such as Penal Code 242
PC battery.)
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Now let's take a closer look at some of these terms and phrases to gain a better understanding of their legal meaning.

1.1. Touch

To "touch" another person...with respect to misdemeanor sexual battery...means you make contact with the intimate part of the victim, either

  1. directly, or
  2. through clothing (either your clothing, or the clothing of the alleged victim).15

To touch another person...with respect to felony sexual battery...means you make contact with the bare skin of the victim, either

  1. directly, or
  2. through your clothing.16

Example : Chad works at a home for mentally disabled adults. He tells Sherrie, a severely disabled resident at the home, to touch his penis through his clothes, and she does so. This counts as aggravated sexual battery.

But note that for purposes of felony sexual battery, the alleged victim's bare skin must be involved in the touching...it is not felony sexual battery if the alleged victim's body only makes contact through his/her clothes.

Example : Let's take Chad and Sherrie from our previous example. Chad touches Sherrie's breast through her clothes.
Because the touching that occurred was only through Sherrie's clothes, Chad is not guilty of felony sexual assault. He may only be charged with misdemeanor sexual assault...even though Sherrie is institutionalized and mentally incapacitated.

1.2. Intimate part

An "intimate part" is a female's breast, or anyone's

  • anus,
  • groin,
  • sexual organ, or
  • buttocks.17

1.3. Against the will of the other person

You violate California's sexual assault law when you touch the other person against his/her will...which means that s/he did not consent to the act.  And in order to consent, a person must act freely and voluntarily knowing the nature of the act to which s/he is consenting.18

On that note, this is why you can be charged with aggravated sexual battery even if the victim consents...IF you fraudulently-that is, falsely-represented that the touching served a professional purpose.  This is because fraud cancels out consent...an individual cannot consent if s/he has been misled and so doesn't know the nature of the act to which s/he is consenting.

1.4. Sexual abuse

When you commit a sexual battery with the specific intent to "cause sexual abuse," it means that you intend to injure, hurt, humiliate, or intimidate the alleged victim...or else to cause him/her to suffer pain in one of his/her intimate parts.

Sexual touching with this as a goal can be sexual battery...even if you were not motivated by a desire to enjoy sexual gratification or sexual pleasure yourself.19

1.5. Unlawful restraint

You unlawfully restrain someone when you control his/her freedom of movement by

  • words,
  • acts, or
  • authority . . . ,

AND the restraint is against his/her will.20

But unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.21

Example : Jill, a teacher, invites her student, Stephanie, into an empty classroom, closes the door and blocks it with a chair.  After Stephanie tries to walk across the room, Jill calls her over and fondles her bare breasts and buttocks beneath her clothes.22
Jill unlawfully restrained Stephanie and therefore committed felony sexual assault.  Jill used more than just the basic physical force required to fondle Stephanie by: 1) using her authority as a teacher, 2) creating a private situation by blocking the door, and 3) preying on Stephanie's fear which was clearly conveyed when she walked across the room away from Jill.23

Also, a person does not unlawfully restrain someone if he or she uses lawful authority for a lawful purpose...as long as the restraint continues to be lawful.24

Example :  Bob, a correctional officer, transports handcuffed male inmates.  While Bob is transporting them, they are considered lawfully restrained.  However, when Bob partially undresses them to fondle them, the purpose is no longer lawful...and the inmates are now unlawfully restrained.25
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1.6. Accomplice

When you are an accomplice-also known as the crime of "aiding and abetting"-, you are subject to prosecution in the same manner...and the same penalties...as the primary culprit.26 You were an "accomplice" to the crime of sexual battery if you

  1. knew the primary culprit is acting in a criminal way, and
  2. intended to...and did, in fact...
    a) aid, facilitate, promote, encourage or instigate the commission of the sexual assault, or
    b) participate in a criminal conspiracy (that is, a joint effort) to commit the sexual battery.27
2. Legal Defenses

Fortunately, there are a variety of legal defenses to a sexual assault charge that a California criminal defense attorney can present on your behalf.  Below are a few of those most common:

2.1. Consent

If the touching is consensual...or if you hold a reasonable belief that the touching is consensual...you cannot be convicted of sexual battery.28

Example : Jerry and Tanya are on a date.  Although Tanya doesn't want Jerry to put his hands inside her bra or underwear, she doesn't communicate this clearly to Jerry and doesn't ask him to stop when he tries.  Jerry reasonably believes that Tanya has (at least implicitly) consented to the behavior.
Later, Tanya accuses Jerry of sexual battery...but unless she can convince the jury that Jerry knew or should have known that she didn't consent to the touching, he can't be found guilty.

2.2. Insufficient evidence

The kind of behavior prohibited by Penal Code 243.4 doesn't usually result in physical evidence.  Many times, there simply isn't enough evidence to sustain a sexual battery allegation.

The prosecution is required to show, beyond a reasonable doubt, that a sexual assault actually occurred. Without solid evidence, this can be a very difficult task...and prosecutors know it.  Therefore, in these sorts of cases a good attorney may be able to get your charges reduced or dismissed without even taking the case to trial.

2.3. False allegations

As Pasadena criminal defense attorney Neil Shouse29 explains:

"Because sexual battery allegations do not require a physical injury, it is an easy crime to accuse another person of without actual evidence.  As a result, some people falsely accuse others of the offense out of jealousy, revenge, anger...or in an effort to influence the outcome of a child custody dispute."

The legal defenses of false allegations can overlap with the defense of insufficient evidence. Often, there is insufficient evidence because the alleged victim made up the entire thing...or lied about not having consented to the activity. In these cases, there is often little or no evidence for the prosecution to rely on.

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3. Penalties, Punishment and Sentencing

3.1. Misdemeanor penalties for sexual battery

As we discussed above, the basic form of California sexual assault is a misdemeanor in California law.  That is, if the crime consists only of 1) touching someone's intimate part, 2) against their will, 3) for purposes of sexual gratification, arousal, or abuse...and none of the aggravating factors discussed above apply...only misdemeanor penalties will apply.30

If you are convicted of misdemeanor sexual assault without aggravating factors, you may face:

  • Up to six (6) months in county jail,
  • A fine of up to two thousand dollars ($2,000)---or up to three thousand dollars ($3,000) if the alleged victim was your employee,31
  • informal (otherwise known as summary) probation for up to five (5) years, which may include

    1. community service,
    2. completion of a batterer's education program, and/or
    3. completion of a program designed to help those with sexual abuse/compulsion issues,

      AND/OR
  • Penal Code 290 PC registration as a sex offender.32
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3.2. Felony penalties for sexual battery

We also discussed above certain aggravating factors-unlawful restraint, an alleged victim who is institutionalized and incapacitated or disabled, and fraudulently convincing someone that the touching serves a medical purpose-that can lead to felony penalties for sexual battery.

If any of those factors applies, then Penal Code 243.4 PC sexual battery becomes a wobbler in California law.33 A "wobbler" is a crime which prosecutors can file as either a misdemeanor or a felony, depending on

  1. the facts of the case, and
  2. your criminal history.

So even if one of the aggravating factors applies, the prosecutor may still choose to charge you with misdemeanor sexual assault. In that case, the potential penalties would be the ones listed in Section 3.1 above...except that the maximum county jail sentence would increase to one (1) year.34

BUT, when an aggravating factor applies, the prosecutor may also choose to charge you with felony sexual battery. If you are convicted of felony sexual assault, you may face the following penalties:

  • formal probation,
  • two (2), three (3) or four (4) years in the California State Prison35 ...AND possibly an additional three (3) to five (5) years in the state prison if the alleged victim sustains a great bodily injury (defined as a significant or substantial physical injury),36
  • a maximum ten thousand dollar ($10,000) fine,37 AND/OR
  • registration as a sex offender.38
4. Related Offenses

There are certain crimes that are closely related to sexual assault....either because they are commonly charged in connection with a Penal Code 243.4 PC sexual battery...or because they are commonly charged instead of a Penal Code 243.4 PC sexual assault.  Rape and battery are two of the most common.

4.1. Penal Code 261 PC California's rape law

You violate Penal Code 261 PC, California's rape law, when you have non-consensual intercourse with another person accomplished by means of threats, force or fraud.39 It is the requirement of intercourse that distinguishes this crime from sexual battery.

Rape is always a felony, punishable by up to eight (8) years in the
state prison...and more if the victim sustains a great bodily injury or if there are other aggravating circumstances.40 It is also a "strike" under California's three strikes law.41

4.2. Penal Code 242 PC California's battery law

Penal Code 242 PC, California's battery law, defines a battery as any unwanted or uninvited touching (whether it's sexual or not).42 If, for example, you nonchalantly take another person's hand and place it on one of your intimate parts, you haven't violated California's sexual battery law (since you didn't touch any of their intimate parts)...but you HAVE committed a battery...that is, assuming the other person did not voluntarily touch you.

This type of simple battery is a misdemeanor, punishable by up to six (6) months in a county jail and a maximum $2,000 fine.43

Call us for help...
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If you or loved one is charged with Penal Code 243.4 PC sexual battery and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

For more information about Nevada sexual assault laws, please visit our page on Nevada sexual assault laws (known in Nevada as "open or gross lewdness" laws).

Online Resources:

Association for the Treatment of Sexual Abusers (ATSA) -
ATSA offers referrals, programs and resources for those suffering from sexual compulsions and sexual disorders.

SAFE (Stop Abuse For Everyone) -
Stop Abuse For Everyone (SAFE) promotes services for all victims and accountability for all perpetrators.

Los Angeles County Batterer's Classes -
A Court appointed list of batterer's classes throughout L.A. County

Legal References:

1California Penal Code 243.4 PC - Sexual battery [California's sexual battery/sexual assault law].  ("(a) 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). (b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching 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). (c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, 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). (d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person's will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, 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). (e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full. (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. (f) As used in subdivisions (a), (b), (c), and (d), "touches" means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense. (g) As used in this section, the following terms have the following meanings: (1) "Intimate part" means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. (2) "Sexual battery" does not include the crimes defined in Section 261 or 289. (3) "Seriously disabled" means a person with severe physical or sensory disabilities. (4) "Medically incapacitated" means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication. (5) "Institutionalized" means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital. (6) "Minor" means a person under 18 years of age. (h) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section. (i) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing. (j) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).")

2 See same, California's sexual battery/sexual assault law, sections (a)-(d).

3 See same, California's sexual battery/sexual assault law.

4 See same, California's sexual battery/sexual assault law.

5 See same, California's sexual battery/sexual assault law.

See also Penal Code 290 PC, California's sex offender registration law.  ("(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to "the Act" in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4 [California's sexual battery law], . . . ; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.")

6 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

7 Penal Code 243.4 PC, California's sexual battery/sexual assault law, endnote 1, above.

8 Penal Code 261 PC California's rape law [compare to California's sexual battery/sexual assault law].  ("(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: . . . .")

9 Penal Code 243.4 PC, California's sexual battery/sexual assault law. ("(e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full. (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."

10 See same, section (a).  ("(a) 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).")

11 See same, section (b).  ("(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching 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).")

12 See same, section (c).  ("(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, 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).")

13 See same, section (d).  ("(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person's will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, 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).")

14 People v. Elam (2001) 91 Cal.App.4th 298, 310.  ("The prosecutor argued and the court accepted that it was sufficient for sexual battery that defendant forced Sirena's hand to touch his penis. They were mistaken. As defined, the term "intimate part" does not include the victim's hand. Moreover, it is the perpetrator who must touch the victim's intimate part, not the other way around.")

15 Penal Code 243.4 PC, California's sexual battery/sexual assault law, subsection (e)(2).  ("(2) As used in this subdivision [that is, with respect to misdemeanor sexual battery], "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.")

16 See same, section (f).  ("(f) As used in subdivisions (a), (b), (c), and (d) [with respect to felony sexual assault], "touches" means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.")

17 See same [California's sexual battery/sexual assault law], section (g).  ("(g) As used in this section, the following terms have the following meanings: (1) "Intimate part" means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.")

18 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 938 - Sexual Battery: Misdemeanor (Pen. Code, § 243.4(e)(1)). ("[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.]")

19 See same, Commentary ("If the court concludes that this reasoning applies to the crime of sexual battery and a party requests a definition of "sexual abuse," the following language may be used: Sexual abuse means any touching of a person's intimate parts in order to cause pain, injury, or discomfort. The perpetrator does not need to achieve any sexual arousal or sexual gratification."

See also People v. White (1986) 179 Cal.App.3d 193, 205.  ("Respondent's position is, essentially, that abuse or mistreatment in the manner described in subdivision (a) is, by definition, sexual abuse simply because of the body parts effected [ sic ], where the intent is in fact to 'abuse,' i.e., to hurt, cause pain to or injure. Surely there are many examples of sexual penetration of others, even of small children, which would not violate the statute because they are not done to arouse, gratify or abuse. These would include insertion of a thermometer or a suppository or other medicine. Since these penetrations are not for any proscribed purpose they are not in violation of subdivision (a). But when a penetration is accomplished for the purpose of causing pain, injury or discomfort, it becomes sexual abuse, even though the perpetrator may not necessarily achieve any sexual arousal or gratification whatsoever.")  Although this case has to do with forcible acts of penetration, its definition for sexual abuse is analogous to that for purposes of sexual battery / sexual assault.

20 CALCRIM 935 - Sexual battery: Felony.  ("Someone is unlawfully restrained when his or her liberty is controlled by words, acts, or authority of another and the restraint is against his or her will. Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.")

21 See same.

See also People v. Pahl (1991) 226 Cal.App.3d 1651, 1661. ("We agree and hold that the unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act. Kelly testified to something more. The facts which we have set out in detail above show all the elements of this offense. Appellant, for his own sexual gratification, repeatedly touched Kelly intimately against her will. Kelly resisted physically and verbally and expressed a desire to go home, but appellant, being heavier and stronger than Kelly, restrained her despite her pleas. The evidence of unlawful restraint was ample.")

22 Facts loosely based on People v. Arnold (1992) 6 Cal.App.4th 18.

23 See same at 31.  ("There is more than one reasonable inference which can be drawn from defendant's placement of the mats against the door. The mats could have been placed against the door to exclude others from the room. Also, the blockage of the door restricted Virginia's avenues of escape. The combination of the exclusion of others and the blockage of a main avenue of escape certainly had a tendency to increase Virginia's isolation and feelings of isolation. While in this isolated area, Virginia walked to the other side of the room, away from defendant. Defendant asked her why she was afraid of him. Thus, defendant was aware of Virginia's fear. In addition defendant was Virginia's teacher, an authority figure, and Virginia was a minor. Acting upon this authority, isolation and fear, defendant called Virginia to him and engaged in the prohibited sexual touching. A reasonable jury could have concluded that the coercive atmosphere created by defendant was such that Virginia's liberty was being controlled by defendant's words, acts and authority against her will and that she was unlawfully restrained. We note that although defendant had a certain amount of legal authority over Virginia by virtue of his position as her teacher, he clearly exceeded the bounds of his lawful authority [which is why he was properly convicted of Penal Code 234.4 PC California sexual battery].")

24 CALJIC 10.37 - Sexual assault.  ("[A restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose, as long as the restraint continues to be for a lawful purpose.]]")

25 Facts loosely based on People v. Alford (1991) 235 Cal.App.3d 799.

26 California Jury Instructions - Criminal ("CALJIC") 3.00 - Principals-Defined. ("Persons who are involved in [committing] [or] [attempting to commit] a crime [including the crime of sexual battery] are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is [equally guilty.] [guilty of a crime.] Principals include: . . . 2 Those who aid and abet the [commission] [or] [attempted commission] of the crime.")

27 CALCRIM 935 - Sexual battery: Felony. ("[A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if: 1 He or she knew of the criminal purpose of the person who committed the crime; AND 2 He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime/ [or] participate in a criminal conspiracy to commit the crime).]")

28 CALCRIM 938 - Sexual Battery: Misdemeanor. ("To prove that the defendant is guilty of this crime, the People must prove that: . . . 2. The touching was done against 's will; . . . .")

29 Pasadena sex crimes attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on cases ranging from DUIs and drug charges to complex, high profile murders. Shouse is an expert on all aspects of criminal and sex crimes defense law . . . and frequently appears as a guest legal commentator on national television.

30 California Penal Code 243.4 PC -- California's sexual battery/sexual assault law.  ("(e)(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full. (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.")

31 See same, California's sexual battery/sexual assault law.

32 Penal Code 290 PC, California's sex offender registration law, endnote 5, above [providing for sex offender registration for people convicted of sexual battery/sexual assault].

33 California Penal Code 243.4 PC -- California's sexual battery/sexual assault law.  ("(a) 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). (b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching 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). (c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, 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). (d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person's will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, 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).")

34 See same, California's sexual battery/sexual assault law.

35 See same, California's sexual battery/sexual assault law.

36 California Penal Code 12022.7 -- Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony [including sexual battery].  ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.  (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.  (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years...(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")  These sections apply to all California felonies, including California Penal Code 243.4 sexual assault.

37 California Penal Code 243.4 PC -- California's sexual battery/sexual assault law.

38 Penal Code 290 PC, California's sex offender registration law, endnote 5, above [providing for sex offender registration for people convicted of sexual battery/sexual assault].

39 See Penal Code 261 PC, California's rape law, endnote 8, above [compare to California's sexual battery/sexual assault law].

40 California Penal Code 264 - Rape, punishment.  ("(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years. (b) In addition to any punishment imposed under this section the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates Section 261 or 262 with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (c)(1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years. (2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years. (3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.")

See also Penal Code 12022.7 PC - Great bodily injury.  ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700.  (f) As used in this section, "great bodily injury" means a significant or substantial physical injury. (g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense. (h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense.")

41California Penal Code 667.5 PC. ("(c) For the purpose of this section, "violent felony" shall mean any of the following . . . (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.")

See also California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law).  ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

42 Penal Code 242 PC California's battery law.  ("Battery defined. A battery is any willful and unlawful use of force or violence upon the person of another.") Compare to California's sexual battery/sexual assault laws.

43 California Penal Code 243 PC - Battery, punishment.  ("(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment....")

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