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California Penal Code § [Section] 243.4 – Sexual Battery

California Penal Code § [Section] 243.4(a) – Sexual Battery

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California Penal Code [CPC]§243.4(a)Sexual Battery – California law prohibiting Sexual Battery applies whenever anyone touches an intimate part of another person's body while one of the persons involved is restrained. The touching has to be against the will of the person touched and it has to occur for sexual arousal, sexual gratification, or sexual abuse.

Since Sexual Battery can be punished as a Misdemeanor or a Felony, depending on the facts of your case, the crime is a “wobbler”[1] in California. If you're convicted of the Misdemeanor form of Sexual Battery, you can receive up to one year in a county jail and pay a fine of up to $2,000. If you're convicted of the Felony form, however, you can receive up to four years in a state prison and pay a fine of up to $10,000. Conviction of either form will require registering as a Sex Offender for at least ten years.

What Does California Penal Code §243.4(a) [Sexual Battery] Prohibit?

In sum, to be guilty of Sexual Battery under CPC §243.4(a), the prosecution must prove that:

  • You (or an accomplice) restrained someone; AND,
  • You/your accomplice touched the person or made the person touch him- or herself or someone else; AND,
  • The touching was against the person's will; AND,
  • The touching was for sexual purposes.

Defining “Sexual Battery” Under California Penal Code §243.4(a)

To convict you under CPC §243.4(a), the prosecution must prove the following beyond a reasonable doubt:

  • Unlawfully Restrained: You or your accomplice[2] unlawfully restrained[3] someone; AND,
  • Touched/Made The Person Touch: You or your accomplice touched the person on an intimate part of the body,[4] or made the person intimately touch him- or herself, or someone else; AND,
  • Against/Will: The intimate touching occurred against the person's will;[5] AND,
  • Sexual Gratification…/Abuse: The intimate touching was for purposes of sexual gratification, sexual arousal, or sexual abuse.[6]

Note: You can't be guilty of Sexual Battery if you “actually and reasonably, even if mistakenly, believed that the other person consented to the touching and actually and reasonably believed that” he or she “consented throughout the act of touching.” The prosecution has “the burden of proving beyond a reasonable doubt that [you] did not actually and reasonably believe that the other person consented.”[7]

Example: Defendant Derrick meets a man, Victim Vincent, at a bar. He buys several drinks for Vincent, tells Vincent that he finds Vincent attractive, and, when Vincent is inebriated, Derrick slips his hand down Vincent's pants.[8] Vincent becomes extremely angry and fights off Derrick before calling police. Derrick is arrested and charged with Sexual Battery under §243.4(a). Should Derrick be convicted?

Conclusion: Derrick touched Vincent in an intimate manner by placing his hand down Vincent's pants. Since Derrick had previously confessed his attraction to Vincent, we can assume that Derrick touched Vincent for Derrick's sexual gratification. That Vincent became angry after being touched suggests that the touching occurred against Vincent's will. However, the two men were drinking in an establishment that we can presume was open to the public, since the facts suggest nothing to the contrary. Vincent could've left the bar at any time – so he wasn't restrained. Derrick shouldn't be convicted of the crime.[9]

Penalties For Sexual Battery Under CPC §243.4(a)

As noted prior, CPC §243.4(a) is a “wobbler”[10] offense, meaning that the prosecution can charge you with a Felony or a Misdemeanor, depending on the unique facts of your case.

If you're convicted of the Misdemeanor form of Sexual Battery, you face up to one (1) year in a county jail or a fine of up to $2,000 (two-thousand dollars). If convicted of the Felony form, you can receive a sentence of up to four (4) years in a state prison or a fine of as much as $10,000 (ten-thousand dollars). It's also possible to receive a fine and imprisonment with both forms of Sexual Battery.[11] Furthermore, if you're convicted of Sexual Battery, you'll have to register as a Sex Offender.[12] A Misdemeanor will result in registering as a “Tier One” offender[13] for ten years, while a Felony conviction will require “Tier Three” registration for the rest of your life.[14]

Probation (permitting you to serve at least part of your sentence outside jail or prison) is available with both forms of Sexual Battery, but might be conditioned on completing a batterer's class or working with the community in some fashion. Factors affecting Probation are part of the California Rules of Court.[15]

Defenses To Sexual Battery Under CPC §243.4(a)

Three of the most common defenses against a charge of Sexual Battery are:

There's Insufficient Evidence To Convict You

Example: Defendant Dina is arrested and charged with Sexual Battery on Victim Van. Van has never presented evidence of being restrained by Dina. He claims that she tied him down but there are no marks on his body and he never had the presence of marks confirmed by a physician. He also doesn't claim that Dina held him in a room or in a secluded space but still Van insists that he was the victim of   Sexual Battery. Should Dina be convicted of the charge?

Conclusion: In the United States the prosecutor must prove every element of charges made against a criminal defendant; failure to do so means that the defendant must be acquitted. Turning to the facts, the absence of proof that Dina restrained Van in any way means that an element of Sexual Battery can't be established by the prosecution. Had Van seen a doctor, or even made a different claim regarding what Dina did, Dina might've been convicted – but neither occurred. Dina must be acquitted of Sexual Battery because there's insufficient evidence to prove that she committed the crime.

There Was Consent To The Touching

Example: Defendant Deirdre makes the acquaintance of Victim Vern on a website that caters to people interested in sadomasochism [deriving sexual pleasure from inflicting pain or from having pain inflicted on you]. The pair meets in person and has a sexual encounter in which Deirdre ties Vern onto a table and Vern asks Deirdre to beat him with a whip. Deirdre hits him so hard on the bare buttocks that his skin starts to bleed – and Vern asks for her to hit him harder. Later, however, after leaving Deirdre's apartment, Vern has to go to the hospital because of the severity of the cuts on his body. Vern then reports Deirdre for an act of Sexual Battery committed under §243.4(a). Should Deirdre be convicted?

Conclusion:  Deirdre made contact with Vern's bare buttocks. She did so for the couple's mutual sexual pleasure, we should assume, since they met on a website meant for people with a sexual fetish for pain. Vern, furthermore, was tied to a table at the time Deidre struck his him. These are elements of the crime. However, Deirdre and Vern were involved in a consensual sexual encounter originating with a fetish website when Deidre struck him, and Vern actually wanted Deirdre to hit him harder after his skin started to bleed. Under the circumstances, Deirdre would be reasonable in assuming that Vern consented to being struck by her for sexual purposes. Deirdre should be acquitted of the accusation.

The Accusation Is False

Example: Defendant David, a chiropractor, is in the midst of a rivalry with Competitor, a chiropractor who's opened an office down the street from David's office. Intent on running David out of business, Competitor sends one of her employees, Victim Valerie, for an appointment with David. When Valerie returns, Competitor orders her to report David to police for committing a Sexual Battery against her. David has done nothing of the kind and Valerie knows this. Nonetheless, David is arrested and charged under CPC §243.4(a). Should David be convicted of the crime?

Conclusion:  David, as the facts state, did nothing unlawful; Competitor just wanted to run David out of business by having her employee levy a false accusation against him. Since no one in the United States should be convicted of a crime that he or she didn't commit, it is essential that David be acquitted of the charges in this situation. (Even Valerie, the alleged victim, knows that David did nothing wrong.) David, therefore, should be acquitted of the charge. The accusation against him is nothing short of false.   

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with CPC §243.4(a) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Sexual Battery, including: Rape (CPC §261(a)), Battery (CPC §242), Statutory Rape (CPC §261.5(b)) and Lewd Acts On A Child (CPC §288(a)).

 

Rape

California's law against Rape (CPC §261(a)) applies when anyone has sexual intercourse with someone who's not his or her spouse without that person's consent. Absence of consent can be overcome in a number of illegal ways, including use of force or threats.

The statute lists several circumstances in which sexual intercourse is considered Rape, such as sexual intercourse with someone who's unconscious owing to alcohol or drug intoxication. Rape is related to Sexual Battery because grievous sex offenses can involve both compelled sexual intercourse and the intimate touching of a restrained person.         

If you're convicted of Rape, the penalty may be:

  • A term of up to eight (8) years in a state prison;[16] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[17] AND,
  • The duty to register as a Sex Offender for at least ten years.[18]

Note: A Rape conviction counts as a violent felony for purposes of California's “Three Strikes” system.[19]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer.

California Criminal Jury Instructions – Rape

To convict you under CPC §261(a)(2), the prosecution must prove the following beyond a reasonable doubt:

You had sexual intercourse with someone who wasn't your wife or husband.[20] The other person didn't consent. Finally, you accomplished the intercourse using threats, fear or force directed at that person or someone else.

Example: Defendant Devin wants to have sex with Victim Vani, his Best Friend's wife. Devin's body is similar to Best Friend's body but they have completely different hair. Devin finds a wig that perfectly resembles Best Friend's hair and Best Friend's hairstyle. He waits until Best Friend goes out of town on business before using a key under a doormat to enter the couple's house while Vani is sleeping. Devin slips into bed with Vani, who's delighted to find him there, thinking that Best Friend has come home early. Devin has sex with Vani and leaves that same night. When Vani realizes what happened, she reports Devin to police, who arrest and charge Devin under §261(a)(2). Should Devin be convicted?        

Conclusion: Devin had sex with Best Friend's wife, not his own wife. This fulfills the first element of Rape. However, the other elements are missing. Vani believed she was having sex with her husband, not Devin, and thus could be said to have consented to sex. The more important point is that Devin didn't threaten Vani or use force or fear to intimidate Vani into having sex. Since at least one element of the crime under CPC §261(a)(2) can't be proven beyond a reasonable doubt, Devin should be acquitted.[21]

Battery

Battery (CPC §242) occurs in California when anyone willfully and unlawfully uses force against another person. An act is committed “willfully” when done it willingly or on purpose. You don't have to intend on breaking the law, hurting someone else, or gaining any advantage to act “willfully.”[22] Battery (also known as “Simple Battery”) is related to Sexual Battery because the crime of Sexual Battery requires the commission of a Battery to be complete.

If you're convicted of Battery, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[23]

Note: A slight touch can be enough to commit a Battery, if it's done in a rude or angry way. The touching doesn't have to cause pain or injury.[24]

You can always find more information in the Battery section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer. That's our guarantee.

California Criminal Jury Instructions – Battery

To convict you under CPC §242, the prosecution must prove the following beyond a reasonable doubt:       

You willfully and unlawfully touched someone in a harmful or offensive manner. Additionally, you didn't act in self-defense, in defense of someone else or while reasonably disciplining a child.

Example: Defendant Dave takes his eight-year-old daughter, Victim Vicki, to a classmate's birthday party. Vicki is unruly and causes a great deal of trouble at the party. Dave, upset with Vicki, takes her aside and spanks her buttocks once. Another partygoer, Parent, witnesses the spanking and makes a call to police. Soon Dave is being arrested for Battery under §242. Should Dave be convicted of the crime?             

Conclusion: Vicki was spanked by her father; we may assume this would be “harmful or offensive” to Vicki. Dave willfully spanked Vicki and wasn't defending himself or another person when he did it. Dave was, however, disciplining his daughter with a spanking. He also spanked her only once, which many would consider “reasonable” in the context of corporal punishment. Thus, without even considering the question of whether Dave was under a lawful duty to spank Vicki, it's very likely that he'd be acquitted.    

Statutory Rape

Statutory Rape (CPC §261.5) occurs in California whenever an adult has “[u]nlawful sexual intercourse […] with a [minor] who is not the spouse of the perpetrator[.]”[25] For purposes of the law, “adult” means a person eighteen years of age or older, while a “minor” is under eighteen.[26]

Section 261.5 is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant.[27] This makes Statutory Rape a “wobbler”[28] crime. However, without aggravating facts, you won't be required to register as a Sex Offender for violating §261.5.[29] The crime of Statutory Rape is related to Sexual Battery because both offenses may involve sex acts between adults and minor children, resulting in charges for both in the same trial.

If you're convicted of Statutory Rape Of A Minor Within Three Years Of Your Age (CPC §261.5(b)), a Misdemeanor, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[30]

Note:  The minor's consent is not a defense to a charge of violating §261.5. However, it is a defense that you reasonably believed the other person was eighteen or older. The prosecutor must prove that you didn't reasonably (and actually) believe the other person was at least eighteen.[31]

More information can be found in the Statutory Rape Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. We guarantee that your call will go directly to a lawyer.

California Criminal Jury Instructions – Statutory Rape

To convict you under §261.5(b), Statutory Rape Of A Minor Within Three Years Of Your Age, the prosecutor must prove the following beyond a reasonable doubt:

You had sex with another person. You and the other person were not married to each other at the time. Finally, at the time of the sex, the other person was under the age of eighteen but not more than three years younger or older than you are.

Example: Eighteen-year-old Defendant Darrin begins an online relationship with thirteen-year-old Victim Vivian. Eventually he convinces Vivian to meet him in-person. Darrin gives Vivian hard alcohol when they meet, takes her to a secluded motel, and has forcible sex with her. Vivian's parents report Darrin, who‘s arrested on one count under §261.5(b), among other crimes. Should he be convicted of Statutory Rape?   

Conclusion: Darrin had sex with a person to whom he wasn't married. Vivian, the other person, was only thirteen at the time. However, Darrin was five years older than Vivian at the time of the illegal sexual intercourse. Thus, while Darrin has committed crimes, he shouldn't be convicted under CPC §261.5(b).[32]

Lewd Acts On A Child

The crime of Lewd Acts On A Child (CPC §288(a)) occurs whenever an adult engages in a sex act with a minor under fourteen. You must intend on “arousing, appealing to, or gratifying the lust, passions, or sexual desires of [yourself] or the child”[33] when the act occurs in order to violate the law. The crime is related to Sexual Battery because Lewd Acts On A Child can occur during a Sexual Battery, which allows the prosecution to charge you with both in the same trial.

If you're convicted of Lewd Acts On A Child Under Fourteen, the penalty may be:

  • A term of up to eight (8) years in state prison;[34] OR,
  • A fine of up to $10,000 (ten-thousand dollars);[35] OR,
  • An additional fine of up to $10,000 (ten-thousand dollars); OR,
  • Both fines and imprisonment;[36] AND,
  • The duty to register as a Sex Offender for at least ten years.[37]

Note: Section 288 also requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required. Additionally, it is not a defense that the minor consented to the act.[38]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.

California Criminal Jury Instructions – Lewd Acts On A Child

To convict you under §288(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully touched a part of a child's body on the bare skin or through the clothing or you got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. You acted intending to gratify your sexual desires or the desire of the child. Finally, the child was under fourteen at the time.

Example: Defendant Daniel, aged twenty, is a camp counselor. Daniel supervises swimming lessons for his campers. This includes watching them change into their swimming trunks. Daniel confesses one night to another Counselor that he derives sexual pleasure from watching the ten-year-old campers changing clothes. Counselor tells the parents of one of Daniel's campers, Victim Vinton, about what Daniel said. Vinton's parents report Daniel for Lewd Acts On A Child, a violation of §288(a). Should he be convicted?  

Conclusion: Vinton was under fourteen when Daniel observed him changing clothes at the camp. Daniel derived sexual pleasure from the act - which he admitted to Counselor. However, Daniel didn't touch Vinton, nor did Daniel induce Vinton to touch himself or someone else. Therefore, while Daniel should not be applauded in any way for his behavior, he can't be convicted of committing Lewd Acts On A Child.  

What Can I Do If I'm Charged With Sexual Battery?

The State of California regards sex crimes as serious offenses. If you're charged with Sexual Battery, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested or charged with Sexual Battery, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.   

References

[1] See “Wobbler” definition at USLegal.com.

[2] “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.” See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[3] “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. A person does not unlawfully restrain someone if he or she only uses lawful authority for a lawful purpose.” See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[4] “An intimate part is a female's breast or the anus, groin, sexual organ or buttocks of anyone. Contact must have been made with bare skin. This means that: [¶] 1. The defendant must have touched the bare skin of the complaining witness' intimate part; OR [¶] 2. The complaining witness' bare skin must have touched the defendant's [or an accomplice's] intimate part either directly or through his or her clothing.” See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[5] “A touching is done against a person's will if that person does not consent to it. To consent, a person must act freely and voluntarily and know the nature of the touching." See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[6] The following language might be used to define “sexual abuse”: “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 ‘Commentary,' California Criminal Jury Instructions 935 (CALCRIM) (2017).

[7] See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[8] Fact pattern based on allegations made against actor Kevin Spacey. See “Actor Kevin Spacey Faces Felony Charges For Alleged Sexual Assault” by Francesca Paris. NPR Online, December 24, 2018.  

[9] Derrick could still be accused of Sexual Assault or Battery, of course.

[10] See Endnote 1.

[11] See CPC §243.4(a).

[12] See CPC §290(c) for a list of those who must register.

[13] See CPC §290(d)(1)(A).

[14] See CPC §290(d)(3)(J).

[15] See California Rules of Court 4.414 (2019).

[16] See CPC §264(a).

[17] See CPC §672.

[18] See Endnote 12.

[19] See CPC §667.5 (c) (3).

[20] “Gender-specific language is used [in the jury instructions] because rape usually occurs between a man and a woman. In keeping with plain English principles, the committee used those terms to make the instruction clear and concrete.” See ‘Commentary,' California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[21] Devin would very likely be charged instead with Rape By Fraud.

[22] See California Criminal Instructions 960 (CALCRIM) (2017).

[23] See CPC §19.

[24] See Endnote 22.

[25] See CPC §261.5(a).

[26] See above.

[27] See §§261.5 (b)-(d).

[28] See Endnote 1.

[29] See Endnote 12.

[30] See Endnote 23.

[31] See California Criminal Jury Instructions 1072 (CALCRIM) (2017).

[32] Darrin would very likely be charged instead with Rape under CPC §261(a) (3) or another form of Statutory Rape (CPC §261.5 (c)).

[33] See CPC §288(a).

[34] See above.

[35] See Endnote 17.

[36] See CPC §288(e)(1).

[37] See Endnote 12.

[38] See California Criminal Jury Instructions (CALCRIM) 1110 (2017).

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