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 s/he was 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. And 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 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 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 doesn’t. 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…but, additionally, 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 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.
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
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
- 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 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
- 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
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 those 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: 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 initiates the sexual activity. Jerry reasonably believes that Tanya has (at least implicitly) consented to the sexual contact. Later, Tanya accuses Jerry of sexual battery and law enforcement arrests him…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.
3. What are the penalties for 243.4 PC?
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
- 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
We also discussed 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 apply, then Penal Code 243.4 PC 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
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 (felony) probation,
- 2, 3 or 4 years in prison35 …AND possibly an additional 3 to 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 people convicted of felony sexual battery if the victim is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, and 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 required to register as just a tier one sex offender, which carries a minimum registration requirement of 10 years.
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 he/she 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 he/she suffers 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 threats, force or fraud.39 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…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
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’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 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.
- See same.
- Also see same.
- Same. See also Penal Code 290 PC.
- Our California criminal defense attorneys also have local offices throughout the state..
- PC 243.4.
- Penal Code 261.
- PC 243.4 section (“(e)(1).
- See same, section (a).
- Same, section (b).
- Also see same, section (c).
- See same, section (d).
- People v. Elam (2001) 91 Cal.App.4th 298, 310.
- Also see Penal Code 243.4 PC. See also People v. Dayan (1995) 34 Cal.App.4th 707.
- See also same, section (f).
- Also see same, section (g).
- CALCRIM 938.
- See 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.
- Also see 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.
- See same at 31.
- CALJIC 10.37.
- Facts also loosely based on People v. Alford (1991) 235 Cal.App.3d 799.
- California Jury Instructions – Criminal (“CALJIC”) 3.00 – Principals-Defined.
- 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.
- Also see 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.
- See same.
- PC 290.
- Also see note 1, supra.
- See same.
- Also see same.
- PC 12022.7.
- 243.4 PC.
- PC 290. There is no first degree/ second degree rape.
- See PC 261.
- Also see PC 264.
- See also PC 667.5.
- Also see PC 242.
- PC 243.