California Penal Code § 243.4 prohibits sexual battery, which is touching another person’s intimate parts without consent and for the purpose of sexual gratification, arousal, or abuse.
Also called “sexual assault,” sexual battery is usually a misdemeanor but can be a felony if the victim was restrained, unconscious, or medically incapacitated.
| Sexual Battery Penalties in California (in general) | |
| As a misdemeanor |
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| As a felony |
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In this article, our California criminal defense attorneys discuss the following sexual battery topics:
- 1. Elements of 243.4 PC
- 2. Defenses
- 3. Penalties
- 4. Statute of Limitations
- 5. Can I be sued?
- 6. Other Battery Offenses
- Additional Resources
1. Elements of 243.4 PC
For you to be convicted of sexual battery under Penal Code 243.4 PC, prosecutors have the burden to prove beyond a reasonable doubt the following three elements of California Jury Instruction “CALCRIM” 938:
- You touched the intimate part of another person,
- The touching was against that person’s will, and
- The purpose of the touching was sexual arousal, sexual gratification, or sexual abuse.1
For this crime to be a felony as opposed to a misdemeanor, the D.A. also has to prove one or more aggravating circumstance. Let’s now examine some of these terms and phrases more closely.
“Touch” Meaning
Touching in misdemeanor sexual battery cases requires making physical contact with the intimate part of the alleged victim, either
- directly, or
- through clothing (either your clothing or the clothing of the alleged victim).
Meanwhile, touching in felony sexual battery cases requires making physical contact with the bare skin of the alleged victim, either
- directly, or
- through your clothing.
It is not felony sexual battery if the alleged victim’s body only makes contact through their clothes.
Example: Chad touches Sherrie’s breast through her clothes. Because the touching that occurred was only through Sherrie’s clothes, Chad is not guilty of felony sexual assault.
Note that – unlike the California crime of rape under 261 PC – the touching does not require that you engage in actual sexual penetration or sexual intercourse.2
“Intimate Part” Meaning
An “intimate part” is a female’s breast or anyone’s
- anus,
- groin,
- sexual organ, or
- buttocks.3
“Against the Other Person’s Will” Meaning
Sexual battery is non-consensual. In order to consent, a person must act freely and voluntarily knowing the nature of the act to which they are consenting.4
For example, if someone agrees to let you touch them after you lie about it being medically necessary, there is no consent because you misled them. Fraud cancels out consent.
Note that you can be convicted of sexual battery even if you are involved with the accuser in an ongoing sexual relationship. Consent to touching is always necessary whether you are dating the person or not.
“Sexual Abuse” Meaning
When you commit a sexual battery with the specific intent to “cause sexual abuse” against someone, it means that you intend to
- injure,
- hurt,
- humiliate,
- intimidate, or
- cause pain in their intimate parts.
Sexual touching with this as a goal can be sexual battery even if you were not motivated by a desire for sexual gratification or sexual pleasure yourself.5
Aggravating Circumstances
In California, sexual battery can be a felony rather than a misdemeanor if one or more of the following aggravating factors apply:
- the alleged victim is unlawfully restrained,
- the alleged victim is institutionalized for medical treatment and is seriously disabled or medically incapacitated,
- the alleged victim is unaware of the nature of the act because you fraudulently represented that the touching served a professional purpose, or
- the alleged victim is made to masturbate or touch the intimate parts of you, an accomplice or another person under any of the above circumstances. (This is the only scenario where California recognizes a sexual battery if the complaining witness is forced to touch your intimate parts instead of you touching theirs.)6
“Unlawful Restraint” Meaning
With regard to “unlawful restraint,” the D.A. would have to show that:
- you controlled the alleged victim’s freedom of movement by words, acts, or authority, and
- the restraint is against their will.
Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.7
Example: Jill, a teacher, invites her student, Stephanie, into an empty classroom, closes the door and blocks it with a chair. Jill then fondles Stephanie’s bare breasts.
Jill used more than just physical force; she used her authority, creating a private situation by blocking the door and preying on Stephanie’s fear.8
Also, you do not unlawfully restrain someone if you use lawful authority for a lawful purpose as long as the restraint continues to be lawful.
Example: Bob, a correctional officer, transports handcuffed male inmates. However, when Bob partially undresses them to fondle them, the purpose is no longer lawful, and the inmates are now unlawfully restrained.9
“Accomplice” Meaning
When you act as an accomplice – also known as the crime of “aiding and abetting” – you face the same charges as the primary culprit. You were an “accomplice” to sexual battery if you:
- knew the primary culprit is acting in a criminal way, and
- intended to – and did, in fact –
- a) aid, facilitate, promote, encourage or instigate the commission of the sexual battery, or
- b) participate in a criminal conspiracy (that is, a joint effort) to commit the sexual battery.10
Penal Code 243.4 PC is California’s sexual battery law.
2. Defenses
Here at Shouse Law Group, we have represented literally thousands of people charged with sexual battery/sexual assault. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting 243.4 PC cases reduced or dismissed.
1) You Had Consent
If the touching is consensual – or if you hold a reasonable belief that the touching is consensual – then you did not commit a sexual battery in California.11
We can often show that the alleged victim consented through such circumstantial evidence as text messages, voicemails, and eyewitness accounts from around the time of the incident.
2) There Was No Sexual Touching
In past sexual battery cases, we have been able to show that any touching that occurred was either not sexual or occurred by mistake (such as accidentally brushing up against someone’s backside in a crowd).
Since there is rarely evidence of what exactly happened, then there may be insufficient proof to sustain a sexual battery allegation beyond a reasonable doubt.12
3) You Were Falsely Accused
We see time and again innocent people getting their lives turned upside down by untrue allegations of sexual misconduct. Also, because sexual battery allegations do not require a physical injury, it is an easy crime to accuse another person of without actual evidence.
Fortunately, experience has shown us that there are many ways to impeach the accuser’s credibility and show that they are being motivated by jealousy, anger, revenge, or an effort to influence the outcome of a child custody dispute.
Through intensive pretrial investigation, we can often amass enough evidence to show that the accuser was lying and persuade the D.A. to drop the case without a trial.
Sexual battery becomes a wobbler when there are aggravating factors.
3. Penalties
If you are convicted in California of misdemeanor sexual assault without aggravating factors, you may face:
- Up to 6 months in jail,
- Up to $2,000 in fines (or up to $3,000 if the alleged victim was your employee),
- Registration as a tier one sex offender for a minimum of 10 years, and
- Informal (“summary”) probation for up to 5 years, which may include
- community service,
- completion of a batterer’s education program, and/or
- completion of a program designed to help those with sexual abuse/compulsion issues.
Meanwhile, violating 243.4 PC with aggravating factors can be a misdemeanor or a felony (a “wobbler“). The misdemeanor maximum jail sentence is one year rather than six months. As a felony, sexual battery carries:
- ,2, 3, or 4 years in prison and possibly an additional 3 to 5 years in prison if the alleged victim sustains a great bodily injury,
- Up to $10,000 in fines,
- Formal (felony) probation, and/or
- Registration as a tier three sex offender for life.13
4. Statute of Limitations
When you are suspected of misdemeanor sexual battery, California prosecutors have one year after the alleged incident to file criminal charges.
Though in suspected cases of felony sexual battery, California prosecutors have 10 years after the alleged incident to file charges.14
5. Can I be sued?
Yes. An alleged victim of sexual assault can sue you in civil court to try and recover any damages they incurred because of the offense, such as medical bills and pain and suffering.
This lawsuit is an entirely separate action from the criminal charges that you may face. In a civil lawsuit, the alleged victim has the burden of proving that you committed a battery and that the crime led to damages.
Note that California now prohibits “stealthing” – a form of sexual battery where you remove a condom during sexual intercourse without your partner’s verbal consent. An alleged stealthing victim can file a civil suit against you if they suffer harm and injuries because of the act.15
6. Other Battery Offenses
| California Battery Offense | Penalties |
| Simple battery (242 PC) | Misdemeanor: Up to 6 months in jail and/or $2,000 |
| Aggravated battery causing serious bodily injury (243(d) PC) | Misdemeanor: Up to 1 year in jail and/or $1,000 or Felony: 2, 3, or 4 years in jail (plus 3 to 6 years if the alleged victim suffers great bodily injury) and/or up to $10,000 |
| Battery on a custodial officer (243.1 PC) | Felony: 16 months, 2 years, or 3 years in jail (or 2, 3, or 4 years if the alleged victim sustains great bodily injury) |
| Battery on a peace or police officer (243(b) & (c) PC) and | No injury Misdemeanor: Up to 1 year in jail and/or $2,000 |
| With injury that requires medical treatment Misdemeanor: Up to 1 year in jail and/or $2,000 or Felony: 16 months, 2 years, or 3 years in jail and/or up to $10,000 | |
| Domestic battery (243(e)(1) PC) | Misdemeanor: Up to 6 months in jail and/or $2,000 |
Additional Resources
If you are a victim, refer to the following for help:
- SAFE (Stop Abuse For Everyone) – Stop Abuse For Everyone (SAFE) promotes services for all victims and accountability for all perpetrators.
- Sexual Violence Resources – List by the California Attorney General of government agencies and other organizations providing information and support.
- California Coalition Against Sexual Assault (CALCASA) – Leading state advocacy group supporting victims and prevention. Key resource for education.
- California Victim Compensation Program – Provides financial assistance to victims of violent crime including sexual assault. State program.
- RAINN – National sexual assault hotline providing free, confidential support for survivors 24/7.
Legal References:
- Penal Code 243.4 PC.
(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).
(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, or any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Civil Rights Department for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.
(2) As used in this subdivision, “touches” means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.
(f) As used in subdivisions (a), (b), (c), and (d), “touches” means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.
(g) As used in this section, the following terms have the following meanings:
(1) “Intimate part” means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.
(2) “Sexual battery” does not include the crimes defined in Section 261 or 289.
(3) “Seriously disabled” means a person with severe physical or sensory disabilities.
(4) “Medically incapacitated” means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.
(5) “Institutionalized” means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.
(6) “Minor” means a person under 18 years of age.
(h) This section does not limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.
(i) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing.
(j) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000).
- Penal Code 261 PC. Penal Code 243.4 PC. See also People v. Dayan (1995) 34 Cal.App.4th 707.
- Penal Code 243.4 PC.
- CALCRIM 938.
- See also People v. White (1986) 179 Cal.App.3d 193; also see People v. Chavez (2000) 84 Cal.App.4th 25.
- See note 1. People v. Elam (2001) 91 Cal.App.4th 298, 310.
- CALCRIM 935. See also People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.
- Facts also loosely based on People v. Arnold (1992) 6 Cal.App.4th 18.
- Same.
- CALCRIM 401. CALCRIM 935. See also People v. Verlinde (2002) 100 Cal.App.4th 1146; People v. Stankewitz (1990) 51 Cal.3d 72.
- CALCRIM 938. See also People v. Andrews (2015) 234 Cal.App.4th 590; People v. Williams (1992) 4 Cal.4th 354; People v. Mayberry (1975) 15 Cal.3d 143.
- See, for example, Deutch v. United States, (1961) 367 U.S. 456.
- Penal Code 243.4 PC. See also People v. Robinson (2016) 63 Cal.4th 200. Also see People v. Babaali (2009) 171 Cal.App.4th 982. Penal Code 290 PC. Penal Code 12022.7 PC. See also In re M.A. (Cal. App. 6th Dist. Sept. 12, 2022), 83 Cal. App. 5th 143. Note that only tier one sex offender registration (for a minimum of 10 years) is required if: the victim is institutionalized for medical treatment and is seriously disabled or medically incapacitated, and the touching is against the will of the person touched, and the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse. See also People v. Perrot (2024) .
- Penal Code 802 PC. Penal Code 801.1 PC.
- Assembly Bill No. 453.