Sexual Offenses

Sexual Battery & Sexual Assault – California Penal Code 243.4 PC


Penal Code 243.4 PC, California’s sexual battery law…alternatively referred to as California’s sexual assault law…prohibits touching the intimate part of another person for purposes of sexual:

- gratification,
- arousal, or
- abuse.

Sexual battery can be either misdemeanor or felony sexual battery. 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),

was unlawfully restrained,

was institutionalized and either medically incapacitated or seriously disabled, or

was forced to masturbate or touch one of your intimate parts . . . or the intimate part of another person . . . under any of the above circumstances.

Here are some examples of misdemeanor sexual assault:

Intentionally fondling a female stranger’s breast without permission, or

Putting your hands on someone else’s buttocks without first obtaining consent to do so.

And here are some examples of felony sexual assault:

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.

Legal Defenses

Some of the legal defenses that are available to fight a Penal Code 243.4 PC sexual battery charge include:

consent (that is, the alleged victim actually consented to the act),

insufficient evidence, and

false allegations / innocence.


A conviction for misdemeanor sexual battery 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).

A conviction for felony sexual battery subjects you to two, (2), three (3) or four (4) years in the California state prison and a maximum $10,000 fine.

And both misdemeanor and felony convictions for this California sex crime subject you to Penal Code 290 PC lifetime registration as a sex offender.

In this article, San Diego’s criminal defense attorney provides a comprehensive guide to understanding California’s sexual battery laws by addressing the following:

1. Legal Definition of Sexual BatterY in California

1.1. Touch

1.2. Intimate part

1.3. Against the will of the other person

1.4. Sexual abuse

1.5. Unlawful restraint

1.6. Accomplice

2. Legal Defenses

2.1. Consent

2.2. Insufficient evidence

2.3. False allegations

3. Penalties, Punishment and Sentencing for California Sexual Assault

3.1. Misdemeanor penalties for sexual battery

3.2. Felony penalties for sexual battery

4. Related Offenses

4.1. Penal Code 261 PC California’s rape law

4.2. Penal Code 242 PC California’s battery law

If, after reading this article, you would like more information, we invite you to contact us at 619-238-1905.

1. Legal Definition of Sexual Battery in California

Penal Code 243.4 PC defines sexual battery…alternatively referred to as sexual assault… as:

1.touching the intimate part of another person,

2.against that person’s will,

3.for the specific purpose of EITHER sexual arousal, sexual gratification, or sexual abuse.

Unlike the California crime of rape under Penal Code 261, sexual assault does not require that the offender engage in actual penetration or sexual intercourse. 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 on-going sexual relationship.

The basic type of sexual battery described above is a misdemeanor (with penalties discussed in detail in Section 3 below).

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. 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, but she doesn’t. Kate could be charged with misdemeanor 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 sexual battery or by someone else,

institutionalized for medical treatment AND is seriously disabled or medically incapacitated,

unaware of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, or

made to masturbate or touch the intimate part of the perpetrator, an accomplice or another person…under any of the above circumstances.

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. (John may still be charged with some other crime, such as Penal Code 242 batter.)

Now let’s take a closer look at some of these terms and phrases to gain a better understanding of their legal meaning.

1.1. Touch

To “touch” another person…with respect to misdemeanor sexual battery…means you make contact with the intimate part of the victim, either

1.directly, or

2.through clothing (either your clothing, or the clothing of the alleged victim).

To touch another person…with respect to felony sexual battery…means you make contact with the bare skin of the victim, either

1.directly, or

2.through your clothing.

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

- anus,

- groin,

- sexual organ, or

- buttocks.

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.

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.

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.

But unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.

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.

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.

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.

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.

1.6. Accomplice

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. You were an “accomplice” to the crime of sexual battery if you

1.knew the primary culprit is acting in a criminal way, and

2.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.

2. Legal Defenses

Fortunately, there are a variety of legal defenses to a sexual assault charge that a California criminal defense attorney can present on your behalf. Below are a few of those most common:

2.1. Consent

If the touching is consensual…or if you hold a reasonable belief that the touching is consensual…you cannot be convicted of sexual battery.

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 tries. Jerry reasonably believes that Tanya has (at least implicitly) consented to the behavior.

Later, Tanya accuses Jerry of sexual battery…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

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. Penalties, Punishment and Sentencing

3.1. Misdemeanor penalties for sexual battery

As 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.

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,

informal (otherwise known as summary) probation for up to five (5) years, which may include service,

2.completion of a batterer’s education program, and/or

3.completion of a program designed to help those with sexual abuse/compulsion issues,


Penal Code 290 PC registration as a sex offender.

3.2. Felony penalties for sexual battery

I also discussed above 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 applies, then Penal Code 243.4 PC sexual battery becomes a wobbler in California law. A “wobbler” is a crime which prosecutors can file as either a misdemeanor or a felony, depending on

1.the facts of the case, and

2.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.

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 probation,

- two (2), three (3) or four (4) years in the California State Prison 35 …AND possibly an additional three (3) to five (5) years in the state prison if the alleged victim sustains a great bodily injury (defined as a significant or substantial physical injury),

- a maximum ten thousand dollar ($10,000) fine, AND/OR

- registration as a sex offender.

4. Related Offenses

There are certain crimes that are closely related to sexual assault….either because they are commonly charged in connection with a Penal Code 243.4 PC sexual battery…or because they are commonly charged instead of a Penal Code 243.4 PC sexual assault. Rape and battery are two of the most common.

4.1. 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. It is the requirement of intercourse that distinguishes this crime from 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. It is also a “strike” under California’s three strikes law.

4.2. 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). 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 a county jail and a maximum $2,000 fine.

Call us for help…

For questions about California’s sexual battery law, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us.

Call us today (619) 238-1905