Sexual Assault Laws in California

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California sexual assault laws define several aggravated forms of sexual battery that elevate sexual battery to a felony offense.

However, the prosecutor generally can choose whether to file a misdemeanor or a felony charge.

Contact our office online or call 619-867-0625 if you have been charged with sexual assault.  

While reading through California’s sexual assault laws, keep in mind that a criminal defense lawyer helps protect people from charges like these.

Although these laws act as a framework, results entirely depend on the specifics of a person’s situation.

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What Is Sexual Battery?

California Penal Code Section 243.4 defines sexual battery as touching the intimate part of another person against that person’s will and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. 

Sexual battery, also called sexual assault, is a criminal offense. The terms can be used interchangeably.

Consequently, there is no difference between sexual assault versus sexual battery in California. 

Using the terms interchangeably sometimes creates confusion.

Typically assault and battery are separate offenses.

An assault is either an attempt to strike someone or placing someone in fear of being struck by another when the attacker has the present ability to commit the act.

On the other hand, the crime of battery is touching someone against their will.

The touching does not have to cause an injury to the victim. The touching could either be harmful or offensive.

Even though sexual assault and sexual battery refer to the same crime, California law uses the term battery because touching another in a sexually gratifying way or to raise sexual arousal is the essence of the crime.

Is Sexual Battery a Felony or Misdemeanor?

Our clients often ask, “Is sexual battery a felony or misdemeanor?” Sexual battery sounds like a heinous offense at the outset.

However, sexual battery is a misdemeanor offense unless an aggravating factor elevates the crime to a felony.

Sexual battery is a “wobbler” offense, which means it can be charged as either a misdemeanor or felony.

We will discuss the difference between a misdemeanor and a felony sexual battery under the California sexual assault laws more thoroughly below. 

Misdemeanor Sexual Assault in San Diego

The definition of sexual assault in California is touching the intimate part of another person against that person’s will and for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

The Basic Crime of Sexual Battery 

This is a misdemeanor sexual battery under the California sexual assault laws. 

“Touching” Another Person 

“Touching” means that the accused made physical contact with the victim.

The physical contact might be skin-to-skin contact or through clothing. 

Touching for a misdemeanor sexual battery does not require that the accused touch the victim’s bare skin.

Touching could include physical contact over the victim’s clothing. 

For felony sexual battery, the accused does need to touch the victim’s bare skin.

The accused might touch the victim directly or through the accused’s clothing. 

Additionally, for misdemeanor sexual battery, the victim is the person touched. 

Misdemeanor sexual assault does not apply when the victim is forced to touch someone.

An aggravated form of sexual battery discussed below could apply to these situations. 

Touching the “Intimate Part” of Another Person

The “intimate part” of another includes any person’s anus, groin, sexual organ, or buttocks. The intimate part of a female also includes breasts. 

Against the Person’s Will

Sexual battery occurs when the accused touches another person against their will.

This means that the accused touched the victim without consent. 

A victim generally does not give consent if the accused represented themselves untruthfully.

A victim also does not legally consent if the accused unfairly pressured the victim or misled the victim to think the touching was not sexual.

In addition, an unconscious or heavily intoxicated person cannot give legal consent. 

Touching Another for a Specific Sexual Purpose

Touching is for a specific sexual purpose when the accused intended to cause sexual arousal, gratification, or abuse. 

Sexual arousal and gratification relate to a person’s sexual pleasure.

Sexual abuse means causing another to suffer pain, injury, or humiliation. Intimidation is also a form of abuse.

If you are looking for an experienced lawyer in sexual assault cases, contact a top-rated lawyer in California at 619-867-0625.

Aggravated Forms of Sexual Battery 

California sexual assault laws define several aggravated forms of sexual battery.

These aggravating factors could elevate the charge from a misdemeanor to a felony offense.

California sexual assault laws define the following aggravating factors: 

The Accused “Unlawfully Restrained” the Victim

Sexual assault is aggravated when the victim is “unlawfully restrained.”

Restraining another means to control that person’s liberty (i.e., freedom of movement). 

If meant to deprive a person of their freedom, the perpetrator’s words, actions, or authority can also be considered “unlawful restraint.”

Keep in mind that the restraint is unlawful if the restriction is against the person’s will.

However, restraint is legal if a lawful authority (like the police) does it for a lawful purpose (like an arrest).

The Victim was “Institutionalized for Medical Treatment” 

Sexually touching a person that is institutionalized for medical treatment can be illegal under California’s sexual assault laws. 

Institutionalized means that the person is in a medical treatment facility, hospital, or nursing home.

This aggravating factor applies to seriously disabled or medically incapacitated victims. 

A person with a severe physical or sensory disability is “seriously disabled.” 

Medically incapacitated” means that the victim is incapacitated by prescribed medications.

These medications could include sedatives or anesthesia. 

The Accused Falsely Represented that the Touching Served a “Professional Purpose”

Is sexual assault a felony? Sexual assault can become a felony offense when the accused misled the victim to think that the touching served a professional purpose.

A professional purpose includes medical and therapeutic treatments. 

For example, a doctor who tells a patient that touching the patient’s intimate parts is for medical treatment when it is really for a sexual purpose, falsely represents that the touching serves a professional purpose. 

The Accused Caused the Victim to “Masturbate or Touch” Another Person

Another aggravated form of sexual assault occurs when the accused causes the victim “to touch or masturbate an intimate part” of the accused or another person. 

This form of aggravated sexual assault applies only if:

  • The accused unlawfully restrained the victim, or 
  • The victim was institutionalized and seriously disabled or medically incapacitated. 

The accused can cause touching or masturbation through outright force or in more subtle ways.

If this force or other manipulation is present, the assault could be charged as a felony.

What Are the Penalties for Penal Code section 243.4?

The penalties listed in California Penal Code Section 243.4 vary depending on whether the crime is charged as a misdemeanor or felony.

A conviction for misdemeanor sexual battery carries a maximum six-month jail sentence and a fine of no more than $2,000.

However, if the accused employed the victim, then the fine increases to $3,000 even though the possible jail time remains at six months.

The court may impose probation and order restitution as well if the victim sustained any losses as a result of the sexual battery. 

If the crime of sexual battery included aggravating factors, then the judge could punish the offender by sentencing them to jail for up to one year or to state prison for two, three, or fours years.

These offenses are called “wobblers” because they “wobble” between being charged as a misdemeanor or a felony.

If the prosecutor determines that prosecuting a wobbler charge as a misdemeanor is appropriate under the circumstances, then the accused cannot be sent to state prison.

Only people convicted of felonies go to prison. 

The prosecutor does not have the final say on whether the crime is a felony or misdemeanor if the crime is a wobbler.

A sentencing judge has the discretion to sentence a person to jail if the judge believes that a misdemeanor conviction is more appropriate than a felony conviction in that situation. 

What Are Some Important Sentencing Considerations?

Sentencing is not an exact science. Judges must weigh several factors when determining the right sentence in a particular case.

The judge will consider the severity of the crime and the impact the crime had on the victim.

These factors are very important to place the crime in the proper context.

Next, the judge will weigh the defendant’s individual characteristics against the severity of the crime and the impact of the crime on the victim.

The defendant’s prior criminal history typically has a significant impact on their ultimate sentence.

Having no or little criminal history can help convince a judge to punish the crime as a misdemeanor.

Conversely, having a lengthy criminal history can hurt, especially if there are similar offenses on the defendant’s record.

The judge will also weigh other factors such as age, family history, and educational background. 

A felony conviction can have life-changing consequences. A person convicted of felony sexual battery must register as a Tier 3 sex offender for life.

Additionally, a convicted felon will lose the right to vote (while in prison or on parole), possess a firearm, work in certain fields, and may even lose the ability to live where they want.

Moreover, a conviction for sexual battery is likely to have severe immigration consequences if the felon is not a U.S. citizen. 

What Are Some Types of Sexual Battery?

Sexual battery can occur in a wide variety of circumstances, far too numerous to try to cover here.

But by way of example, touching a woman’s buttocks without consent would constitute a misdemeanor sexual battery.

Another example would be when a boss brushes his employee’s breast with his hand on purpose while pointing out something at work. 

An example of felony sexual battery in a medical situation would include if a dentist performs oral surgery and fondles their patient while the patient is unconscious.

Another nonmedical example is when someone compels a mentally incapacitated person to touch them sexually.

Charges Related to Sexual Assault

Aiding and Abetting: Accomplice Liability

Accomplices of sexual assault can be charged just as severely as the perpetrator.

A person is an accomplice if the person knows the perpetrator is committing sexual assault and they aid, encourage, or facilitate the perpetrator in committing the crime.

Rape: California Penal Code §261

This California sexual assault law, Penal Code Section 261.5, is the state’s statutory rape law.

Rape is non-consensual intercourse with another person accomplished through threats, force, or fraud.

Sexual assault does not require actual penetration or sexual intercourse as is required by the rape statute.

Battery: California Penal Code §242 PC

Criminal battery is “any willful and unlawful use of force or violence upon the person of another.”

Battery applies to more types of conduct than sexual assault.

For example, contact with another person may be a battery regardless of whether the touching was sexual or not.

Also, under battery law, the contact does not need to be with a person’s intimate parts.

Indecent Exposure

California Penal Code Section 314 criminalizes indecent exposure, which occurs when a person willfully and lewdly does one of the following:

  • Exposes his or her private parts in public or any place where others are present
  • Helps another person expose himself publicly

As a misdemeanor, this crime is punishable by up to one year in county jail and a fine.

Defending Against a Sexual Assault Charge

Several defenses might be available for those accused of sexual assault. 

Because sexual assault allegations carry criminal penalties as well as personal and professional consequences, the accused should develop a strong defense strategy to protect their legal rights and reputation. 

A knowledgeable and experienced defense lawyer might use a variety of defenses against a sexual assault charge. Possible defenses include:

Consent of the Victim

Consent is a defense if the victim consented to the accused’s touch.

Consent could also be a defense if the accused mistakenly believed the victim gave consent to being touched.

The accused might have a defense if the accused honestly and reasonably believed the victim gave consent

Note that an ongoing sexual relationship between the accused and the victim is not a defense against sexual assault.

The accused can still be convicted if they have a prior sexual relationship with the other person.

Consent is an absolute defense under California’s sexual assault laws as the accuser is 18 or older.

Insufficient Evidence to Prove Sexual Battery

In a sexual assault case, like any criminal proceeding, the prosecution must prove the crime beyond a reasonable doubt.

Sexual assault crimes often produce little physical evidence.

As a result, the prosecution may have trouble providing enough evidence to prove the charge.

False Allegations by the Victim

In some cases, the accused could use the defense that the victim’s allegations are false.

Allegations can be false for many reasons, including:

  • The victim mistakenly identified the accused as the perpetrator of a sexual assault. 
  • The victim made allegations due to mental illness.
  • The victim’s fabricated the allegations out of spite or other bad intentions.

Unfortunately, false accusations of sexual assault are not uncommon in California.

If you face a false sexual assault accusation, contact a criminal defense lawyer immediately.

A lawyer can discuss the options available for proving your innocence. Contacting a lawyer specializing in sexual assault cases is important. Reach out to a highly-rated sexual assault lawyer today.

Penalties for a Conviction Under California’s Sexual Assault Laws

Sexual assault is a criminal offense, charged as either a misdemeanor or a felony. 

As discussed earlier, California’s sexual assault laws often give prosecutors the choice to file either a misdemeanor or felony charge.

A prosecutor will consider the facts of the case, the accused’s criminal history, and whether there are aggravating factors. 

Besides criminal penalties, victims might bring civil lawsuits for money damages as well.

Penalties for Misdemeanor Sexual Assault

The penalties for a misdemeanor sexual assault conviction include the following.

  • Jail: Someone found guilty of misdemeanor sexual assault could be in county jail for six months or up to one year. 
  • Fines: If convicted, the guilty party may have to pay a fine of up to $3,000.
  • Probation: The guilty party can also be placed on informal probation for up to five years. Informal probation may require things like community service, educational programs, or rehabilitation programs.
  • Registration: The guilty party could also be registered as a tier one sex offender for a minimum of ten years.

Currently, the requirement to register is a lifetime requirement.

However, on January 1, 2021, California will institute a three-tiered system. The three tiers will be:

  • Tier 1: this level is for the lowest-level offenders, who must register for at least 10 years.
  • Tier 2: this level requires registration for at least 20 years.
  • Tier 3: this level is reserved for the most serious sex offenders, including rapists, who have a lifetime registration obligation.

Penalties for Felony Sexual Assault

If convicted of felony sexual assault, the following penalties could apply.

  • Prison: If convicted, the guilty party could be in California state prison for up to four years. The guilty party could be in prison for an additional three to five years if the victim sustained significant bodily injury. 
  • Fines: If convicted, the guilty party could owe up to $10,000 in fines.
  • Registration: Additionally, the guilty party may have to be registered as a tier three sex offender for the rest of their life.

Speak to a San Diego Criminal Defense Attorney

If you are facing sexual assault allegations, you need a criminal defense lawyer on your side to defend your rights and your reputation.

The criminal defense lawyers at The Law Offices of Kerry L. Armstrong, APLC., understand the personal and professional repercussions of a sexual assault accusation.

Our lawyers can work with you to craft a strong defense tailored to the needs of your case.

Contact our office online or call 619-867-0625 to learn more about the defense strategies that could be available to you.  

[2020] Downloadable Guide on Sexual Assault Laws in California

[2020] Downloadable Guide on Sexual Assault Laws in California

If you are facing sexual assault allegations and still needing time before hiring a defense attorney..

Download our latest guide around sexual assault laws in California. Then, when you are ready to hire a sexual assault defense attorney you can reach out to our office.

Note: We Do Not Collect Any Personal Data With This Downloadable Guide

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Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.