Penal Code Section 243.4 defines sexual battery as follows: 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. The law recognizes the difference between friendly touching, a friendly touch on the arm, a gentle touch on the back, and unwanted touching. A friend, or even someone you have just met, may walk up and gently touch the arm of another as a friendly gesture. But, anyone who touches another on an intimate part of their body, without their permission, is an assault. The law describes “intimate part” as follows: anus, groin, sexual organ or buttocks of anyone and the breast of a female. This type of touching is sexual in nature and therefore characterized as “sexual assault”, which is different than assault which is described as the unwanted touching of another. The law further explains that the unwanted touching of another’s intimate part, under Penal Code Section 243.4, is done for the purpose of sexual gratification.
Sexual Assault can be prosecuted as a felony or a misdemeanor, depending upon the circumstances. The severity of the offense will determine how the case will be filed. When prosecuting someone for sexual abuse, the prosecution must prove the “elements” of the crime. They are as follows:
(a) The defendant (or an accomplice) unlawfully restrained another person.
(b) While this person was restrained, the defendant touched an intimate part of this other person or touched this other person with his or her own intimate part.
(c) The touching was done against the other person’s will.
(d) The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.
For the case to be charged as a felony, contact must have been made with the other person’s bare skin. What this means is that the individual must have touched the bare skin of the victim’s intimate part. Or, the victim’s bare skin must have touched the defendant’s intimate part. This can be directly on the bare skin or through clothing.
As indicated above, the person must be “restrained” for felony sexual abuse to be charged. However, restraining someone doesn’t just mean by physical force. Someone can be unlawfully restrained when his or her movement is controlled by words, acts or the authority of another. The restraint must of course be against his or her will.
The difference between felony and misdemeanor assault is restraint and touching of the bare skin. To explain, if an individual walks by a another and reaches over and grabs that person’s buttocks, through their clothes, this would be considered a misdemeanor sexual assault, because there was no restraining of the victim and no touching of any bare parts.
Defenses to Sexual Battery
- False Accusations: Sexual assault is the type of crime that typically leaves no evidence. There is usually no physical injury or evidence of any contact, which makes it easy for someone to make false accusations.
- That the touching was consensual is a defense to sexual battery, as well as the touching being non-sexual in nature.
Penalties for Sexual Battery
- Misdemeanor sexual battery carries a sentence of up to six months in jail
- Court fees and fines
- Requirement to attend sexual offender program or attend counseling
- One of the more serious consequences is the requirement that the offender be required to register as a sex offender.
- Felony convictions for sexual battery are more serious and therefore carry more sever penalties.
As you can imagine, a conviction for sexual battery has consequences that can last a lifetime. It is a very serious criminal offense, which requires an experienced criminal defense lawyer who has experience handling these types of cases. In some cases, an attorney may be able to talk to the District Attorney before charges are filed, provide the DA with information he/she may not have and, may result in the charges not being filed at all. Anyone facing this type of charge should contact an experienced criminal defense attorney as early in the case as possible.