California Penal Code § 243.4 PC defines sexual battery (also called sexual assault) as
- touching the intimate parts of another person,
- against the person’s will,
- for the purposes of sexual gratification, sexual arousal, or sexual abuse.
A sexual battery charge may be filed as a
The language of the code section states that:
243.4. (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).
Sexual battery cases can be charged as either a misdemeanor or a felony. Felony penalties may apply if the alleged victim was:
- unaware of the nature of the act because they were fraudulently convinced that the touching was for professional purposes (like, for example, medical or therapeutic purposes),
- unlawfully restrained,
- institutionalized and either medically incapacitated or seriously disabled, or
- forced to masturbate or touch one of your intimate parts – or the intimate part of another person – under any of the above circumstances. 1 2
- Intentionally fondling a female stranger’s breast without permission, or
- Putting your hands on a person’s buttocks without first obtaining the person’s consent to do so.
- 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.
Some common legal defenses that criminal defense lawyers use include:
- consent (that is, the alleged victim actually consented to the act),
- insufficient evidence, and
- false allegations / innocence.
A misdemeanor sexual battery conviction 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 felony conviction subjects you to a California state prison sentence of
- two, (2), three (3) or four (4) years,
- and a maximum $10,000 fine.4
Misdemeanor convictions of sexual battery carry a minimum ten-year requirement to register as a tier-one sex offender. Most felony convictions carry a lifetime requirement to be on the sex offender registry as a tier three sex offender. Learn more about the California sex offender registration system.5
Moreover, amidst the #metoo movement, civil lawsuits by victims of sexual assault have become increasingly common.
In this article, our criminal defense attorneys provide a comprehensive guide to understanding California sexual assault law by addressing the following:
- 1. How does California law define sexual battery?
- 2. What are common defenses to the charge?
- 3. What are the penalties for 243.4 PC?
- 4. Can sexual battery lead to a civil lawsuit for damages?
- 5. Are there crimes related to sexual assault?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. How does California law define sexual battery?
Penal Code 243.4 PC defines sexual battery (alternatively referred to as sexual assault) as:
- touching the intimate part of another person,
- against that person’s will,
- for the specific purpose of 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 engages in actual sexual penetration or sexual intercourse.8 You can be convicted under California’s sexual assault law even if you are involved with the accuser in an ongoing 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, making it a criminal offense. 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 the sexual conduct, but she does not. Kate could be charged with misdemeanor sexual assault.
Aggravated forms of 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 and the alleged victim is:
- unlawfully restrained either by the person who is committing a 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 theirs.
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.
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.)
Now let’s take a closer look at some of these terms and phrases to gain a better understanding of their legal meaning.
To “touch” another person with respect to misdemeanor sexual battery means you make physical contact with the intimate part of the victim, either
- directly, or
- 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 physical contact with the bare skin of the victim, either
- directly, or
- through your clothing.16
It is not felony sexual battery if the alleged victim’s body only makes contact through their clothes.
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.
1.2. Intimate part
An “intimate part” is a female’s breast, or anyone’s
- sexual organ, or
1.3. Against the will of the other person
You violate California’s sexual assault law when you touch the other person against their, will which means that they did not consent to the act. In order to consent, a person must act freely and voluntarily knowing the nature of the act to which they are consenting.18
This is why you can be charged with aggravated sexual battery even if the victim consents IF you fraudulently represented that the touching served a professional purpose. This is because fraud cancels out consent.
An individual cannot consent if they have been misled and so do not know the nature of the act to which they are consenting.
1.4. Sexual abuse
When you commit a sexual battery with the specific intent to “cause sexual abuse” against someone, it means that you intend to
- intimidate, or
- cause pain in their 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 their freedom of movement by
- acts, or
AND the restraint is against their will.20
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 using her authority, creating a private situation by blocking the door, and preying on Stephanie’s fear.23
Also, a person does not unlawfully restrain someone if they use 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
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
- knew the primary culprit is acting in a criminal way, and
- 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. What are common defenses to the charge?
Fortunately, there are a variety of legal defenses that a California criminal defense attorney can present in an effort to beat a sexual assault charge. Below are a few of the most common:
If the touching is consensual – or if you hold a reasonable belief that the touching is consensual – then you did not commit a sexual battery.28
Example: Tanya does not want her date Jerry to put his hands inside her bra or underwear, but she does not ask him to stop when he initiates sexual activity. Unless she can convince a jury that Jerry knew or should have known that she did not consent to the touching, he cannot be found guilty.
2.2. Insufficient evidence
The kind of behavior prohibited by Penal Code 243.4 does not usually result in physical evidence. Many times, there simply is not 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.
3. What are the penalties for 243.4 PC?
3.1. Misdemeanor penalties for sexual battery
The basic form of California sexual assault is a misdemeanor if the crime consists only of
- touching someone’s intimate part,
- against their will,
- for purposes of sexual gratification, arousal, or abuse.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 and/or
- informal (otherwise known as summary) probation for up to five (5) years, which may include
- community service,
- completion of a batterer’s education program, and/or
- completion of a program designed to help those with sexual abuse/compulsion issues, AND/OR
- Penal Code 290 PC registration as a tier one sex offender for a minimum of 10 years.32
3.2. Felony penalties for sexual battery
When there are aggravating factors such as
- unlawful restraint,
- an alleged victim who is institutionalized and incapacitated or disabled, or
- fraudulently convincing someone that the touching serves a medical purpose
sexual battery becomes a wobbler in California law.33 A “wobbler” is a crime that prosecutors can file as either a misdemeanor or a felony, depending on
- the facts of the case, and
- 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
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 (felony) probation,
- two (2), three (3) or four (4) years in prison35 AND possibly an additional three (3) to five (5) years in prison if the alleged victim sustains a great bodily injury (a significant or substantial physical injury),36
- a maximum of $10,000 fine,37 AND/OR
- registration as a tier three sex offender for life.38
Note that only tier one sex offender registration (for a minimum of 10 years) is required if:
- the victim is institutionalized for medical treatment and is seriously disabled or medically incapacitated, and
- the touching is against the will of the person touched, and
- the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse.
4. Can sexual battery lead to a civil lawsuit for damages?
Yes. An alleged “victim” of sexual assault can sue the offender in civil court to try and recover any damages they incurred because of the offense.
This lawsuit is a separate and additional action from the criminal charges that the offender may face.
In a civil lawsuit, the “victim” has the burden of proving that the offender committed a battery and the crime led to verifiable damages.
“Damages” may include:
- medical bills and medical expenses,
- lost wages,
- lost earning capacity,
- property damage, and
- pain and suffering.
Note that in October of 2021, California Gov. Gavin Newsome signed a bill into law that prohibits “stealthing,” or a form of sexual battery where a person removes a condom during sexual intercourse without a partner’s verbal consent. The new law is Assembly Bill No. 453.
Given the law, a stealthing victim can now file a civil suit against the offender if they suffer harm and injuries because of the act.
5. Are there crimes related to sexual assault?
There are certain crimes that are closely related to sexual assault either
- because the D.A. commonly prosecutes them in connection with a Penal Code 243.4 PC sexual battery offense or
- because the D.A. commonly brings them instead of a Penal Code 243.4 PC sexual assault.
Rape and battery are two of the most common under California state law.
5.1. 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
- force or
It is the requirement of intercourse that distinguishes this crime from a sexual battery.
Rape is always a felony, punishable by up to eight (8) years in the state prison. The sentence can be greater if
- the victim sustains a great bodily injury or
- there are other aggravating circumstances.40
It is also a “strike” under California’s three-strikes law.41
See our related article on statutory rape laws.
5.2. 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 is sexual or not).42
If, for example, you nonchalantly take another person’s hand and place it on one of your intimate parts, you have not violated California’s sexual battery law (since you did not touch any of their intimate parts). Though you HAVE committed a battery, 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 county jail and
- a maximum $2,000 fine.43
Call us for help…
In sum, if you or a loved one has been accused of sexual battery and are looking to hire a criminal justice attorney for representation, we invite you to contact us at Shouse Law Group. We can also provide a consultation in office or by phone.
In addition, 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.
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.
- California Penal Code 243.4 PC. See also People v. Reeves (2001) 91 Cal.App.4th 14.
- Same. See also People v. Sommer (Cal. App. 1st Dist. 2021), 275 Cal. Rptr. 3d 872.
- Same. Penal Code 290 PC.
- Our California criminal defense attorneys also have local offices throughout the state..
- Penal Code 243.4 PC.
- Penal Code 261 PC.
- Penal Code 243.4 (e)(1) PC.
- Same, section (a).
- Same, section (b).
- Same, section (c).
- Same, section (d).
- People v. Elam (2001) 91 Cal.App.4th 298, 310.
- Penal Code 243.4 PC. See also People v. Dayan (1995) 34 Cal.App.4th 707.
- Same, section (f).
- Same, section (g).
- CALCRIM 938.
- Same, Commentary. See also People v. White (1986) 179 Cal.App.3d 193; also see People v. Chavez (2000) 84 Cal.App.4th 25.
- CALCRIM 935.
- Same. See also People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.
- Facts also loosely based on People v. Arnold (1992) 6 Cal.App.4th 18.
- Same at 31.
- See CALCRIM 935.
- Facts also loosely based on People v. Alford (1991) 235 Cal.App.3d 799.
- California Jury Instructions – CALCRIM 401.
- CALCRIM 935. See also People v. Verlinde (2002) 100 Cal.App.4th 1146; People v. Stankewitz (1990) 51 Cal.3d 72.
- CALCRIM 938. See also People v. Andrews (2015) 234 Cal.App.4th 590; People v. Williams (1992) 4 Cal.4th 354; People v. Mayberry (1975) 15 Cal.3d 143.
- Pasadena sex crimes attorney Neil Shouse is also the Managing Attorney of Shouse Law Group.
- Penal Code 243.4 PC Section (e)(1). See also People v. Robinson (2016) 63 Cal.4th 200. Also see People v. Babaali (2009) 171 Cal.App.4th 982.
- Penal Code 290 PC.
- Note 1, supra.
- Penal Code 12022.7 PC.
- Penal Code 243.4 PC.
- Penal Code 290 PC. There is no first degree/ second degree rape. See also In re M.A. (Cal. App. 6th Dist. Sept. 12, 2022), 83 Cal. App. 5th 143.
- Penal Code 261 PC.
- Penal Code 264 PC.
- Penal Code 667.5 PC.
- Penal Code 242 PC.
- Penal Code 243 PC.