Sexual Battery

Sexual Battery

A sexual touching or battery as the term implies is the offensive touching of someone with a sexual intent. It can be filed as either a felony or as a misdemeanor. The touching must be an act which is against the will of the person touch, “for the purpose of sexual arousal, sexual gratification, or sexual abuse.”1 The touching can be against a person who is “unlawfully restrained” by the perpetrator or a person who is in the company of the perpetrator by consent.2 A victim may also be “institutionalized for medical treatment,” or someone who is “seriously disabled or medically incapacitated.”3 A private or intimate part of a person’s body must be the subject of the touching.4 The battery may involve causing a victim to masturbate the perpetrator or causing a victim to touch some other intimate part of the body of the perpetrator.5

A sexual battery does not include rape, or penetration by a foreign or unknown object.6 A violation of sexual battery does not prevent a person from being prosecuted for any other offenses which may have been committed during the course of the touching.7

Sexual Battery

An intimate part includes a person’s sexual organ, anus, groin, or buttocks, or a female breast.8 To touch means to make physical contact with the skin of another whether directly or through clothing.9 A person is seriously disabled if they have a physical or mental handicap.10 Medically incapacitated means that as the result of taking a prescribed medication a person is unable to consent.11 To be institutionalized a person must have been voluntarily or involuntarily placed in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.12

Sexual Battery

Unlawful restraint does not mean physical restraint. It can be submission to authority or to an adult’s direction if the victim is a minor. Unlawfully restrained has been interpreted to mean, “a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority ...,” which are intended to deprive, “the person’s liberty, and such restriction is against the person’s will.” A restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose as long as the restraint continues to be for a lawful purpose.” However, a person who is lawfully in police custody either as the result of an arrest, or confined in a jail, or committed to a prison, but is placed into a position by a police officer or guard in order to make them available for a sexual touching, the person is then not considered lawfully restrained during the period the custody’s intent was for the purpose of a sexual touching.






1 Section 243.4 of the California Penal Code
2 Sections 243.4(a), (c) of the California Penal Code
3 Sections 243(b), (c) of the California Penal Code
4 Sections 243.4(a), (b) of the California Penal Code
5 Section 243.4(c) of the California Penal Code
6 Sections 261, 289, 243.4(f)(2) of the California Penal Code
7 Section 243.4(g) of the California Penal Code
8 Section 243.4(e) of the California Penal Code
9 Section 243.4(e) of the California Penal Code
10 Section 243.4(f)(3) of the California Penal Code
11 Section 243.4(f)(4) of the California Penal Code
12 Section 243.4(f)(5) of the California Penal Code