California Sexual Assault and Battery Laws

Under California law, the difference between sexual assault and battery is a matter of degree. But a conviction for either can result in serious consequences including jail, prison, and sex offender registration.

By , Attorney

California has several sexual assault and battery laws that criminalize sexual misconduct. The difference between sexual assault and battery appears to be a matter of degree. A wide range of misconduct involving sexual penetration (such as rape), or sexual contact with a child, is considered sexual assault. Other types of misconduct, such as touching someone's intimate body parts without consent, are considered sexual battery. Convictions of crimes within each category, however, can result in serious consequences, such as prison time and sex offender registration.

All Sexual Assault and Battery Offenses Involve Lack of Consent

Sexual activity becomes criminal when the physical act is against the other person's will, meaning the person doesn't consent to it. Although consent generally means to agree, sometimes sexual conduct is illegal even when the other party agrees to it because, under the law, some people are considered unable to consent. For example, children are unable to consent to sexual activity because they're too immature to fully understand what they're consenting to. Similarly, people with serious mental disabilities are also unable to consent. Unconscious people (who are asleep or passed out, for example), also can't consent for obvious reasons. And people who have been tricked into giving consent (such as medical patients) likewise have not consented under the law.

California Sexual Battery

Sexual battery can occur any time someone touches another person's intimate parts without the person's consent if the touching is done for a sexual or abusive purpose. It can be a misdemeanor or a felony, depending on the circumstances.

Misdemeanor Sexual Battery

Under California law, a sexual battery is touching someone's intimate parts (genitals, buttocks, anus, or breasts of women) against the person's will, for the purpose of sexual arousal, gratification, or abuse. A touching intended to insult, humiliate, or intimidate someone is considered "for the purpose of abuse." A sexual battery can occur even if the touching is only over the victim's clothing. So, grabbing someone's breasts or buttocks over their clothes to humiliate the person could be a sexual battery, even if the defendant had no sexual motivation for the touching.

Unless committed in the circumstances discussed in the Felony Sexual Battery section below, sexual battery is a misdemeanor, punishable by up to six months in jail, a fine, or both.

Felony Sexual Battery

Sexual battery (as described above) is potentially a felony if the accused touches the skin of the victim's intimate parts in the following circumstances:

  • The accused or an accomplice restrained the victim
  • The accused tricked the victim into believing the battery was for a professional purpose (such as telling the victim the touching was for medical treatment)
  • The victim was institutionalized and was seriously disabled or incapacitated (such as someone in a mental institution or nursing home)
  • The accused made a person who was restrained or institutionalized sexually touch the accused or another person.

Whenever a battery occurs in the above situations, the offense is a "wobbler," which means the prosecutor can charge it as either a misdemeanor or a felony, or the court can reduce it to a misdemeanor if the defendant is convicted of a felony. If it's a misdemeanor, it's punishable by up to a year in county jail or a fine, or both. But if it's a felony, it's punishable by up to four years in prison.

California Sexual Assault Crimes

California sexual assault offenses, which are usually more serious than sexual battery, are divided into several categories of crimes, each with its own range of punishment.

Types of Sexual Assaults

The following are some commonly prosecuted sexual assault crimes:

  • Rape: a person commits rape when he has sexual intercourse (penile penetration of the vagina or genitalia, no matter how slight) with someone without consent, either because she is incapable of consenting or because the defendant used force or fear to accomplish the intercourse.
  • Unlawful intercourse with a minor (commonly known as statutory rape): Intercourse with anyone under 18 (unless the person is a spouse) is a crime, even when the other person wants to participate in it. It is a misdemeanor if the age difference between the participants is three years or less, but is a "wobbler" (felony or misdemeanor) if the accused is more than three years older than the victim.
  • Forcible sexual penetration: California law punishes as a felony any act of sexual penetration with a "foreign object" (meaning anything other than a penis, including, for example, a finger), if committed by force or fear (such as restraining or threatening); or if committed against someone incapable of consenting. Sexual penetration is the penetration of the genitals or anus, for sexual arousal, gratification, or abuse.
  • Sodomy: California defines sodomy as penile penetration of another's anus, no matter how slight. It's a felony if committed by force or fear or when the other person is incapable of consenting. Even without force, and even if both parties want to participate, it's a wobbler if committed with a person under 18, and it's a felony if the defendant is over 21 and the other person is under 16.
  • Oral copulation: Contact of a person's mouth with another person's genitals or anus is oral copulation. It's a wobbler if a participant is under 18, and a felony if the defendant is over 21 and the other person is under 16. As with sodomy and sexual penetration, it's also a felony if committed by force or fear or on someone who can't consent.
  • Lewd or lascivious acts: When victims are under 14, any touching of any part of their bodies is a felony if it is intended to arouse or appeal to the defendant's or the child's sexual desires. This conduct is also a felony if the child is 14 or 15, and the defendant is 10 years older. Lewd and lascivious acts can include touching over clothing, touching non-genital areas of the body, or encouraging victims to touch themselves.

Punishments for Sexual Assault

Each of the above offenses carries a range of punishments that reflects its level of seriousness. Statutory rape, for example, is punishable by a fine or by six months in county jail (or both) if the age difference between the participants is three years or less, but it's punishable by up to four years if the defendant is over 21 and the victim is under 16. Much longer sentences are imposed for rape and other serious sexual assaults, including life sentences for assaults on children that result in injury or involve penetration. The sentences for each type of sexual assault can be found in the statutes for those offenses: Cal. Penal Code §§ 261, 264 (rape), 261.5 (statutory rape), 269 (aggravated sexual assault of a child), 286 (sodomy), 287 (oral copulation), 288 (lewd or lascivious acts), 289 (sexual penetration), 288.7 (assaults on children under 10).

Sex Offender Registration

People convicted of sexual assault or battery (and many other types of sex offenses, such as indecent exposure) who live or work in California must register as sex offenders for 10 years if the offense is a misdemeanor or a non-serious felony. More serious offenses require registration for 20 years, and some offenses require lifetime registration. Though registration is not technically considered punishment because it's intended as a public safety tool, it is sometimes the most serious consequence of a sex crime conviction. The sex offender registry publishes on the internet the person's name, photograph, address, date of birth, and sex offense convictions. This can affect whether the person can maintain employment, housing, and a place in the community. Further, the failure to register is punishable as a misdemeanor or felony, depending on the seriousness of the crime the defendant must register for.

Talk to a Lawyer

If you're facing charges of sexual battery, sexual assault, or other sexual misconduct, it's important to discuss your case with a lawyer right away. Local attorneys with years of criminal defense experience will know many of the prosecutors and judges where your case will be heard, will know whether a good plea deal is possible (such as one that avoids a conviction requiring sex offender registration), and can assess your case for possible defenses if the case goes to trial.

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