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Are you wondering, “What is sexual battery?” How is it different from sexual assault?  When is it a felony?  California Penal Code section 243.4 defines sexual battery and the related penalties and explains when it is a misdemeanor or felony.

What Is Sexual Battery?

Sexual battery in California is touching a person’s intimate parts against their will for the purpose of sexual arousal, gratification, or abuse.

Misdemeanor Sexual Battery vs. Felony Sexual Battery

Sexual battery is a “wobbler” offense in California, meaning it can be charged as either a misdemeanor or a felony, depending on the circumstances.

Misdemeanor Sexual Battery

Touching an intimate part of a person against their will for sexual arousal, gratification, or abuse, without more, is misdemeanor sexual battery.

Touching can constitute misdemeanor sexual battery even if it is over the victim’s clothes. Intimate parts are the groin, anus, genitals, buttocks, or a female’s breast. 

Sexual Battery

Sexual battery is considered more serious if it also involves a situation where the victim is:

  • Unlawfully restrained;
  • Committed for medical treatment and seriously disabled or mentally incapacitated; 
  • Unaware of the nature of the act because the offender fraudulently led them to believe the touching served a professional purpose; or
  • Coerced to touch themselves or someone else while being unlawfully restrained or institutionalized.

Unlawful restraint means that someone—either the perpetrator of the assault or their accomplice—is controlling the victim against their will for an unlawful purpose. It requires more than just the force used to do the unlawful touching.

Additionally, to constitute this more aggravated form of sexual battery, the touching must be under the clothing of the victim, although it may be through the clothes of the offender.

Whether this type of sexual battery is a felony or a misdemeanor depends on the details of the offense and the perpetrator’s criminal history.

Aggravating factors include the extent of the victim’s injuries, the amount of force used, if there is a deadly weapon present, and the perpetrator’s criminal history.


  1. As Kate is walking toward her car after leaving work, a man runs up from behind and grabs her buttocks and then runs away. This is misdemeanor sexual battery. If the man grabbed Kate so that she could not move and put his hand under her clothes to touch her, that could potentially be charged as a felony, especially if a weapon were involved.
  2. Mary is seeing a therapist for some issues she has regarding sex and intimacy with her boyfriend. The therapist tells her that part of the therapy includes physical touch and convinces her to let him touch her breasts to help her “face her fears.” Convinced, she allows him to fondle her breasts under her shirt. This could be charged as either a misdemeanor or a felony because it involves fraud.

Sexual Battery vs. Sexual Assault

Different states use many different terms to classify sexual battery, such as unwanted touching, sexual imposition, forcible sexual abuse, or sexual assault.

When additional aggravating factors are present, the state may define an enhanced crime, such as aggravated sexual battery, gross sexual imposition, or aggravated sexual assault.

But California does not break these out into different crimes. It does not provide a separate sexual assault meaning, sexual imposition meaning, aggravated sexual battery meaning, or gross sexual imposition meaning, for example. 

Rather, in California, most sexual crimes not involving rape or abuse of a child fall under the umbrella of sexual battery. Basic sexual battery is a misdemeanor, and sexual battery involving the additional aggravating factors discussed above can be either a misdemeanor or a felony.

What Are the Penalties for Sexual Battery?

For misdemeanor sexual battery, the penalty is up to a year in county jail and a maximum fine of $2,000. If the victim of unwanted sexual touching was the offender’s employee, the fine is $3,000.

For felony sexual battery, the penalty is up to four years in state prison and up to a $10,000 fine. 

Sex Offender Registration

Additionally, someone convicted of sexual battery will have to register as a sex offender in California. It is generally a Tier 1 offense, whether it is a misdemeanor or a felony. This means that the defendant must register annually as a sex offender for ten years.

Once that time is up, they may petition the court for removal from the California sex offender registry. Depending on their circumstances, however, they may be excluded from the Megan’s Law national registry.

Are There Any Defenses?

There are several possible defenses to the offense of sexual battery, such as:

  • Consent—if the victim consented or the person accused reasonably believed they consented;
  • Insufficient evidence—sexual battery can be a difficult offense to prove or disprove because the crime does not require a physical injury; and
  • False allegations/innocence.

The prosecutor must prove all the elements of sexual battery:

  • Touching the victim’s intimate parts;
  • Against their will; and
  • For the purpose of sexual arousal, gratification, or abuse.

Additionally, if the prosecutor is pursuing a felony sexual battery charge, they must prove at least one of the other aggravating circumstances: unlawful restraint, mental incapacity, fraud, or coercion.

The necessary standard is proof beyond a reasonable doubt. A defense to any of these factors can cause the prosecution to be unable to prove their case.

One small note is that, where sexual battery occurs via fraud (eg. in the example about Mary, above), consent is not a defense. In the example above, Mary consented to let the therapist fondle her breasts, but she did it with the belief that it was for a professional purpose. 

If You Have Been Accused of Sexual Battery, the Law Offices of Kerry L. Armstrong, APLC, Can Help

Facing a criminal charge can be scary and overwhelming. Our San Diego sex crime defense attorneys are ready and willing to do whatever it takes to protect your rights.

Even if you received a charge for misdemeanor sexual battery and not a felony, that is still a big deal. You will still have to deal with the criminal record and face possible jail time and a substantial penalty.

Finally, being forced to register as a sex offender can drastically and negatively impact all areas of your life. You need to have an experienced criminal defense attorney on your side that has your best interests at heart. Contact us today to schedule your consultation.

Author Photo

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.

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