Sexual Battery by Fraudulent Misrepresentation (PC 243.4(c))?
Sexual battery by fraudulent misrepresentation, a violation of Penal Code § 243.4(c), is a terrible crime wherein a person receives consent to unlawfully touch another person by tricking another person.
The Gist of this Article: Sexual battery by misrepresentation is a crime wherein consent from the victim is gained by tricking the victim into believing the battery serves some type of professional, i.e., medical, purpose, as the following summary of the First Appellate District opinion explains.
Heath Jacob Sommer, a psychologist at a mental health clinic on Travis Air Force Base in Fairfield, California, sexually assaulted three women under a guise of “exposure therapy.” The women ironically sought his medical services to overcome sexual trauma.
He was charged with oral copulation by fraudulent representation (formerly Penal Code § 288a(f)), rape by fraudulent representation (Penal Code § 261(a)(4)(D)), sexual battery by fraudulent representation (Penal Code § 243.4(c)) and sexual battery (Penal Code § 243.4(e)(1)).
“Exposure therapy” was described by Sommer to his patients as a method by which the patient becomes desensitized from trauma associated with past assault(s) by being exposed to sexual activity that makes the original trauma less traumatic by comparison and to understand that “not all sexual contact is bad.”
This type of therapy involved Sommer asking one patient to perform fellatio on him, but the patient declined this invitation. With another patient, Sommer suggested she allow him to engage in sexual intercourse with her, which she agreed to because, she testified, she trusted Sommer and believe the therapeutic exercise would be effective. With the third patient, Sommer told her that he believed she would commit suicide if she did not engage in sexual “therapy” with him, which involved touching of sexual organs and body parts.
The jury in Solano County Superior Court convicted him of all charges except one and the judge sentenced Sommer to eleven years in state prison.
On appeal to the First Appellate District, Sommer argued there was insufficient evidence to support one of the convictions for sexual battery by fraudulent misrepresentation and that the prosecutor misstated the law during rebuttal argument.
As to both grounds for appeal, as well as others Sommer argued, the underlying conviction was affirmed in all respects.
The insufficient evidence argument and the misstatement of the law argument were handled by the First Appellate District by reciting the law on Penal Code § 243.4(c). The appellate court explained that for a jury to find defendant committed sexual battery by fraud, it must find that the evidence shows the victim was “unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.” People v. Pham (2009) 180 Cal.App.4th 919, 924.
In other words, the prosecution must prove to the jury that “the defendant tricked the victim into submitting to the touching on the pretext it served a professional purpose. This can be accomplished even when the victim has agreed to the act in question.
So long as the victim was unaware of the ‘essential characteristics of the act,’ i.e., the sexual nature of the act itself, the unconsciousness requirement will be satisfied.” Id., at p. 928.
The “unconsciousness of the sexual nature of the act” need not “be absolute. Confusion, rather than clarity, is not surprising when a professional unexpectedly touches the sexual parts of a victim’s body during purported professional treatment.
Confusion or doubt about the purpose of the touching does not preclude a conviction as long as the jury finds beyond a reasonable doubt that the victim allowed the touching to occur because the defendant’s fraudulent misrepresentation of a professional purpose.” People v. Icke (2017) 9 Cal.App.5th 138, 149.
In reviewing a sufficiency of the evidence argument on appeal, the appellate court reviews the record “in the light most favorable to the judgement to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” The appellate court does not reweight the evidence or revisit credibility issues. Pham, supra, 180 Cal.App.4th 924-925.
In Sommer’s trial, the victims each testified that they trusted Sommer and, while sometimes skeptical of his proposed treatment as unorthodox, agreed to the treatment as “therapy” to reach a medical outcome.
We present this summary as a bit of a warning to anyone facing such charges, as the prosecution enjoys a rather low legal standard and juries will be unforgiving to any professional who leverages his or her position for personal sexual gratification.
The citation for the First Appellate District Court ruling discussed above is People v. Heath Jacob Sommer (1st App. Dist., 2021) 61 Cal. App. 5th 696, 275 Cal. Rptr. 3d 872.
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