Can I be charged with sexual battery when I mistakenly touched the complaining witness?

When sexual battery involves mere touching, and not penetration, the defense of mistake is likely to fare better.

It is possible to be charged with sexual battery if you touched someone in an intimate part of the person’s body, even if it was a mistake. However, being charged with a crime does not mean you will be convicted, and mistake is a defense that is available to a defendant facing almost any type of criminal charge.

Being charged with a crime means being formally accused of criminal wrongdoing. In order for a defendant to be convicted of a crime, the prosecution must present evidence that proves beyond a reasonable doubt that the defendant committed the crime and intended to do so. The defendant also is entitled to present a defense—such as mistake or lack of intent—in response to the charges and evidence.

What Is Sexual Battery?

In some states, the crime of sexual battery refers to rape—forcing another person to engage in sexual intercourse, anal sex, or other sexual activity involving even the slightest form of penetration, without that person’s consent or against the person’s will. In other states, the crime of sexual battery is defined as unwanted sexual touching of intimate body parts without consent or through fraud. Some sexual battery laws also require that the offender commit the act for the purpose of sexual gratification or arousal. In some states, this crime is referred to as criminal sexual contact (as opposed to criminal sexual penetration).

Examples of this type of sexual battery include:

  • patting a person’s buttocks
  • grabbing or fondling a woman’s breast
  • touching the victim’s genital area
  • forcing the victim to touch an intimate part of the offender’s body, or
  • even forcing a kiss on the mouth.

The Defense of Mistake When Sexual Battery Is Defined as Unwanted Sexual Touching

A defendant charged with sexual battery as the crime of non-consensual touching can present the defense that the touch was a mistake. The defendant may have brushed against the complaining witness accidentally in a crowd or touched her breast when he meant to touch her arm. In order to present this type of defense, the defendant probably will have to testify at trial in order to explain his state of mind and lack of intent to have sexual contact with the complaining witness.

In such a case, the credibility of the defendant and the complaining witness will be crucial. Credibility refers to whether a person is believable or trustworthy, or whether the person’s testimony seems truthful. If the jury or judge deciding the case finds the complaining witness more credible than the defendant (or vice versa), the issue of credibility probably will decide the case and determine whether the defendant is found guilty or not guilty.

The Defense of Mistake When Sexual Battery Is Defined as Rape or Criminal Sexual Penetration

The defense of mistake probably would be more challenging in a case in which the defendant is charged with sexual battery as a crime of rape or penetration. A scenario in which a person accidentally brushes up against another or touches a part of the body without intent to do so is more logical and imaginable than a scenario in which penetration happens “accidentally” or by mistake. Confusion about consent is a more common defense in a rape case. For instance, the complaining witness accuses the defendant of rape and the defendant explains that he or she thought the encounter was consensual and did not understand that the other person was objecting or had said, “No.”

Seek Legal Representation

If you are charged with sexual battery or any other sex crime, you should request a lawyer or contact one immediately. An attorney experienced in sexual crime cases will be familiar with the criminal laws and the defenses available in your case. If you believe you touched the complaining witness by mistake, an attorney can review the facts and the law with you and assist you in defending against the charges.

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