Criminal Defense

Questions Answered About Sexual Battery

February 15, 2018 by Mikel Rastegar in Criminal Defense   Leave a Comment
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What is the Crime of Sexual Battery PC- 243.4?

The crime of sexual battery is a wobbler- which means it can be charged as either a felony or a misdemeanor depending on the circumstances.

A misdemeanor charge of sexual battery is the unlawful touching of the intimate part of another person for the specific purpose of sexual arousal, gratification or abuse. The touching must be against the will of the complaining person.

Touching, for the purposes of a misdemeanor, means physical contact with either directly with the skin or through the clothing of the complaining person. The part touched must be an “intimate part,” which means the genitals, sexual organs, anus, groin, or buttocks of the complaining person, and if the complaining person is a female, also includes her breast(s). So, if you grab someone’s buttocks at the bar, you can be charged with PC 243.4(e)(1), though you can also be charged with simple batter under PC 242.

When does Sexual Battery Become a Felony?

A felony charge of sexual battery includes not only the touching of an intimate part against the person’s will for a sexual purposes, but also includes one of the following additional elements below. However, it is important to realize, that even if one of the additional elements below applies, it then becomes a wobbler, which means it can be filed either as a misdemeanor or a felony, at the prosecutor’s discretion.

PC 243.4(a)- Sexual Battery with Unlawful Restraint- One additional element includes “unlawfully restrained.” In other words, if the illicit touching occurs when the complaining person is unlawfully restrained, then the sexual battery becomes a felony. Unlawful restraint occurs when you use words, acts or authority to restrain someone against their will.

Here are some examples:

  • John, a teacher in high school, meets with Veronica, a student, alone during lunch in his classroom. He orders her not to leave the room, and fondles her breasts over her clothing. Because Teacher John has used his authority to command Veronica to not leave the classroom, he can be charged with felony Sexual Battery under PC 243.4(a).
  • Donald, a police officer, handcuffs Jeff and transports him to jail after he Jeff been legally arrested for a crime. While at the station, Donald frisks Jeff for weapons, but intentionally touches Jeff’s sexual organs for Donald’s own sexual arousal. Though the intentional restraint due to the arrest was lawful, the subsequent illegal sexual touching converted the initial lawful restraint into an unlawful restraint.
  • Elam grabs Meagan’s arm and keeps her from walking away. He then pulls her hand towards his genitals so she stimulates him sexually against her will. Elam can be charged with felony sexual battery.

Note however: The unlawful restraint requires something more than just the physical force necessary to accomplish the sexual touching for the sexual battery. So the actual “grabbing of the ass,” so to speak, does not count as force, without something more.

PC 243.4(b)- Sexual Battery while Institutionalized for Medical Treatment- If the complaining person is institutionalized for medical treatment AND also seriously disabled OR medically incapacitated, then the prosecutor can charge this crime as a felony. Again, it’s important to realize that since it becomes a wobbler, it can also be charged as a misdemeanor- it’s totally up to the prosecutor.

Here is an example:

  • The complaining person is in a wheel chair at a psychiatric institution, and she complains that one of the other patients has fondled her breasts. The other patient can now be charged with a felony (or a misdemeanor, at the prosecutor’s discretion).

PC 243.4(c)- Sexual Battery while Fraudulently Representing a Professional Purpose- If the complaining person alleges that the sexual battery happened while the accused was operating under the color of a professional purpose, then it can be filed as a felony. Note: In this instance, it is not a defense to the crime that the complaining person gave their consent to the act in question, since such consent was arrived at by a fraudulent representation.

Here is an example:

  • A masseuse is giving a massage to a client. The masseuse massages the groin area of the patient for the masseuse’s own sexual gratification. The masseuse can be charged with sexual battery, even if the patient believes that the massaging of his/her groin is part of the massage, and even if the patient enjoys it.

PC 243.4(d)- Sexual Battery Which Causes Touching of Victim, Defendant or 3rd person- While the other code sections, 243.4(a), (b), (c) and (e) address the conduct of the defendant’s touching, PC 243.4(d) applies when the victim does the touching, either touching the defendant or herself or a 3rd person.

This section applies if all of the following elements are present:

  1. A touching of an intimate part of another
  2. Against their will
  3. For the purpose of sexual arousal, gratification or abuse
  4. While the victim is unlawfully restrained OR
  5. The victim is institutionalized for the purposes AND is medically disabled
  6. The defendant causes the victim to masturbate or touch herself in an intimate part, or to touch the defendant or a 3rd party.

Again, this code section applies if the defendant causes the victim to touch herself or the defendant or a third party. The other code sections deal with the defendant’s touching, not the victim’s.

PC 243.4(e)(1)- Misdemeanor Sexual Battery- Under this provision, the prosecutor MUST file a misdemeanor, and cannot file a felony because none of the other aggravating elements are present. Although there is a touching of an intimate part of another against their will, there is no (1) unlawful restraint (2) institutionalization of another with a medical condition (3) fraudulent representation of a professional purpose or (4) causing of the victim to touch the defendant while restrained or institutionalized with a medical condition. This is the most commonly filed charge for sexual battery.

What are the Penalties and Punishments for PC 243.4 Sexual Battery?

For a misdemeanor charge:

You can be sentenced to a maximum time of six (6) months of jail, and a fine of $2,000. The fine can be increased to $3,000 if you were an employer and the victim was your employee. If you are charged with a misdemeanor under PC 243.4(a)- (d), you can be sentenced to a maximum of 364 days in county jail and a fine of $2,000. Note: In county jail, you get 50% good time credit, so you only have to do half the time. So under PC 243.4(e)(1) that would translate into only 3 months of actual time, and under PC 243.4(a)-(d) that would translate into only 180 days of actual jail time. However, you might do less time than this- because of the overcrowding issues some people do as little as 10% of their time, and even less, at the discretion of the Sheriff.

Sexual Registration is one of the biggest problems with pleading guilty to this misdemeanor. Under PC 290, you are required to register as a sex offender for at least 10 years. This is a lifetime registration requirement that requires you to reveal your home address, place of work and other identifying information with local law enforcement every year on your birthday. If you are homeless or transient, you must register every 30 days. That means, you will be on the Meagan’s law website and your name, address, and conviction are easily accessible with a click of a button.

For a felony charge:

You can be sent to prison for 2, 3 or 4 years and fined up to $10,000. The sexual registration requirement is a lifetime requirement and a failure to register will subject you to severe penalties, including prison. This is also a lifetime registration requirement that requires you to reveal your home address, place of work and other identifying information with local law enforcement every year on your birthday. If you are homeless or transient, you must register every 30 days. That means, you will be on the Meagan’s law website and your name, address, and conviction are easily accessible with a click of a button.

What are the Defenses to a Charge of Sexual Battery?

Consent- If the other person consented to your advances, this is a complete defense to the crime of sexual battery. Even if you have simply a reasonable belief that the other person consented, then you must be found not-guilty and can win your case.

Example: John and Ida meet in a club and begin flirting. John eases his hand down the back of her pants, touching her underwear. Although Ida doesn’t like the move, she does not object to the act and does not communicate her displeasure. John reasonably believes that Ida consented to his sexual overture. If Ida later testifies in court that John committed sexual battery, she must convince the jury that John knew or should have known that this was against her will.

Not enough Evidence- The prosecutor must provide proof Beyond a Reasonable Doubt- this is the highest standard recognized by law. The level of proof must be high, and must leave someone with an abiding conviction, i.e. a very sure feeling, that you are guilty of this crime. Many sexual battery cases are based primarily on the subjective feelings of the complaining person and there is little or no evidence other than the statements of the accuser, who may now regret past sexual conduct previously consented. The police and detectives know this, and that’s why they try extra hard to get a statement from the accused. The police want to trap the defendant into making a confession or a misstep to seal their case. For this reason, it is imperative that you do not contact the police, and you hire an attorney right away. Many cases would be he-said she-said factual scenarios but for the self-defeating statements of the defendant.

Charges are False- Sexual Battery is an area which can be rife with ambiguity and potential abuse. Many times flirting, courtships, and sexual advances are based on implicit, nonverbal communication. This is where misunderstandings can occur between the person making the sexual advance, and the one receiving it. A misunderstanding is not the same thing as a crime for sexual battery.

Touching was asexual in nature- If you touched another person on an intimate part against their will, but without the intent to sexually arouse, gratify, or abuse, you cannot be convicted of sexual battery. For example, intimately dancing with another person and inadvertently touching an “intimate part of a person’s body” does not meet the standards for a charge of sexual battery.

More Frequently Asked Questions about PC 243.4

What are related offenses that can be charged?

Offenses that are related to sexual battery include simple battery, PC 242, which is a lesser included offense- meaning that it includes all the elements of sexual battery except it is just an offensive touching that doesn’t necessarily include a sexual element. Another related offense is PC 261 Rape which is when you have non-consensual intercourse with another person accomplished by means of threats, force or fraud. The requirement of sexual intercourse distinguishes rape from sexual battery which has no such requirement. Rape is more serious crime because it is punished by a harsher sentence- a maximum 8 year prison sentence.

What if I don’t touch the victim’s skin, only their clothes?

Under PC 243.4(a), if the touching is not on the bare skin, it must be a misdemeanor. Sexual battery under PC 243.4(a) requires the touching be made on the alleged victim’s BARE SKIN. If it is over the tank top and bra, it doesn’t qualify as a felony. CalCrim Jury Instruction 935, specifically states that “Contact must have been made with the Victim’s bare skin.”

How can an attorney help me?

Hiring an attorney early is the best insurance policy you can have. A conviction for sexual battery can wreck your life, ruin your job prospects, and destroy your reputation. Your instinct might be to avoid dealing with it, to deny the seriousness of the accusations, or to try to be “penny wise and pound foolish,” by trying to save money on a lawyer. However, as the old saying goes, “An ounce of prevention is a pound of cure.” Your lawyer can go over the entire scenario with you and help you come up with a game plan for action, including speaking to the police on your behalf.

DON’T EVER SPEAK TO ANYONE IN LAW ENFORCEMENT.

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