What is Sexual Battery (Penal Code § 243.4(e)(1))?
Sexual battery is unwanted touching of an “intimate body part” without consent, through fraud or while restraining the victim for purposes of sexual gratification, arousal or abuse. It is less serious than rape insofar as no sexual penetration takes place, but it is very serious nonetheless.
Brief Synopsis: Sexual battery, a violation of Penal Code § 243.4(e)(1), is a wobbler. It can be charged as a misdemeanor or felony, depending upon the case facts and defendant’s criminal history, but a conviction for either level of the crime involves registration as a sex offender under Penal Code § 290. Low-term for a felony is two years in state prison; high-term is four years before any enhancements are added.
The crime can be charged as a misdemeanor or a felony, depending on the case facts and the suspect’s criminal history. When the victim is fraudulently advised that the touching is necessary for medical or therapeutic purposes (i.e. defendant is a medical professional or therapist), it can be charged as a felony. If the victim is unlawfully restrained before the touching takes place, such circumstances likely will support felony charges. If defendant takes advantage of a mentally disabled or institutionalized person to commit sexual battery, this can support felony charges as well. Lastly, even if defendant never touches the victim, but forces that person to masturbate herself or himself, felony charges will be filed.
Misdemeanor charges are more common when a suspect impulsively touches the rear end, breasts or crotch area of a victim, but just for a split second.
The defenses to such charges are obviously consent by the alleged victim to such touching, that the victim is fabricating the charges (often with an ulterior motive and purpose) or that the touching was inadvertent with no intent for sexual gratification, arousal or abuse.
The penalty for a misdemeanor violation of Penal Code § 243.4 is six months or one year in county jail, depending upon the circumstances, as well as a fine of up to $2,000, plus penalties and assessments (which can boost the total owed to over $7,500).
Clara Shortridge Foltz CCBIn cases we have handled, probation is not uncommon, but on terms that include a stay-away order from the victim and his or her residence, sexual compulsiveness classes (usually 52 at the rate of one per week) and community service or Cal-Trans, plus fines. If the victim sought medical attention or psychological care as a result of the battery, such expenses would be sought from defendant as restitution.
If the case is resolved as a felony, the Penal Code provides that a minimum sentence is two years in state prison, the middle term is three years and the maximum term is four years before any sentencing enhancements, if applicable, are applied, as well as a court fine of up to $10,000, plus penalties and assessments that can, when added, boost the total fine to over $30,000.
The biggest penalty for either a misdemeanor or felony conviction is registration as a sex offender. With the new tiered sex offender categories set to be implemented as of January 1, 2022, a misdemeanor conviction would subject defendant to Tier One registration for ten years from the date of conviction if probation is allowed or ten years from the date of release from jail.
A felony conviction for violation of Penal Code § 243.4 is widely expected to be Tier 3 registration, which means registration as a sex offender for life.
It is worth noting that under Penal Code § 290.46(e), an individual with no other convictions for offenses that require registration under Penal Code § 290 can petition the Department of Justice for exclusion from the Megan’s Law website if he or she is convicted of violated 243.4(a) (as well as misdemeanor 647.6 (annoying or molesting a child)).
At trial, if the victim is a minor, he or she has the right under Penal Code § 868.5 to have up to two persons at his or her own choosing present as a support witness. The effect that this can have on a jury observing this is obviously bad for defendant because it suggests the crime was quite traumatic to the young person, prejudicing the defendant, when in some cases the crime is fabricated by the alleged victim. The special treatment afforded the victim also makes the crime seem more credible.
If the victim is age 15 or younger or is developmentally disabled, the prosecution may apply for an order that the victim’s testimony at the preliminary hearing be videotaped. Penal Code § 1346(a). Like having the right to a support person at trial, such “special” accommodation may bolster the victim’s credibility and by using a videotape, that person avoids cross-examination, which we think is unfair to defendant.
For the non-citizen defendant, it may be reassuring to know that a conviction for misdemeanor 243.4 has not been held to be a crime of violence and therefore would not be considered an aggravated felony even if a sentence of more than one year were imposed. See U.S. v. Lopez-Montanez (9th Cir., 2004) 421 F.3d 926.
Lastly, under Penal Code § 290(d)(3), if a juvenile is adjudicated to have violated Penal Code § 243.4, he or she does not have to register as a sex offender under Penal Code § 290, but an adult does have to so register.
For more information about 290 registration and other similar charges, please click on the following articles:
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