Sexual Battery Laws, Definition, Elements, & Affirmative Defenses, California

Sexual Battery is Not Rape

Sexual battery is not rape. However, rape is sexual battery. In rape, there is penetration of private areas. In sexual battery, there is harmful or offensive touching.

A person commits a sexual battery if he or she acts with the intent to cause harmful or offensive contact (or to cause imminent apprehension of contact) with an “intimate part” of the body, and a sexually offensive contact does result. Cal. Civ. Code §1708.5.

The elements of sexual battery are:

  1. A person must act with a specific intent to cause harm or offensive contact. An intent to cause imminent apprehension of contact is enough for a claim of sexual battery.
  2. A person must cause harm or contact to an “intimate part” of the body.
  3. Sexually offensive contact must result.


Sexual battery is defined differently in each state and may even be called different names depending on the state. In some states sexual battery will be used to describe which in other states would be called sexual assault or rape. In some states sexual contact with a minor falls under the umbrella term of sexual battery, whereas in other states it would be called child molestation. Each state will have its own sexual battery statute which will clearly define what is considered sexual battery in the eyes of the law.

In general across the states sexual battery is classified as non-consensual touching of another person’s body for the sexual gratification of the offender. Under this definition many states include patting of the buttocks, groping, and touching of intimate areas under the term sexual battery. Other states however only consider penetrative acts as sexual battery and non-penetrative acts are given another term and carry different punishments based on the criminal weight they are given.

The distinction in terms means that depending on the state sexual battery can carry a felony charge or simply a misdemeanor charge requiring no jail time served. Regardless of the state the sexual component of the crime isn’t the only consideration the law takes in charging and penalizing the offender. Factors such as the use of force, mental capacity, and age of the victim are all considered when charging an offender with sexual battery.

What is California Law for Sexual Battery?


Under California Civil Code 1708.5, a person commits a sexual battery who does any of the following:

  • Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.

  • Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.

  • Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.


A person who commits a sexual battery upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages.

The court in an action pursuant to this section may award equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper.

For the purposes of this section “intimate part” means the sexual organ, anus, groin, or buttocks of any person, or the breast of a female.

The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.

For purposes of this section “offensive contact” means contact that offends a reasonable sense of personal dignity.

Element 1: Intent to Cause Harmful or Offensive Contact or Apprehension


The defendant must have acted with the intent to cause harmful or offensive contact with the plaintiff’s intimate parts, or the apprehension of such contact.

“A cause of action for sexual battery under Civil Code section 1708.5 requires the batterer intend to cause a ‘harmful or offensive’ contact and the batteree suffer a ‘sexually offensive contact.’ Moreover, the section is interpreted to require that the batteree did not consent to the contact.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.)

It is important to note that intent is an important factor for a claim of sexual battery.


Element 2: Touch Intimate Parts of the Body for Sexual Battery

“Intimate part” means the sexual organ, anus, groin, or buttocks of any person, or the breast of a female [Civ. Code § 1708.5(d)].


“Offensive contact” means contact that offends a reasonable sense of personal dignity [Civ. Code § 1708.5(f)].


What is sexually offensive contact? Sexually offensive contact is contact that a reasonable person, in the plaintiff’s situation, would deem offensive.

Example: the Court found a claim sexual battery between an apartment manager and a tenant. In this case, an apartment manager made sexually offensive contact by grabbing a tenant’s breast, and after being pushed away, grabbing her buttocks.

Element 3: Causation

The defendant’s act must have directly or indirectly resulted in sexually offensive contact.

Element 4: Lack of Consent


Lack of consent is an element of sexual battery that the plaintiff has the burden of proving.
Therefore, the plaintiff must show that he or she did not give their affirmative consent before the defendant assaulted them. During the discovery process, issues may arise as to specific facts that the plaintiff must show to prove a lack of consent.


If the victim is ruled as being mentally unfit to consent when the sexual act was committed then most states would consider the act to be sexual battery. All states would consider this to apply to victims with permanent diminished mental capacities but some states also consider temporary mental deficiencies such as someone who was drunk, drugged, or otherwise unconscious regardless of if their state was brought about by the offender.

In cases where temporary mental deficiencies aren’t included under the same law as someone with permanent disability the law will have a separate category for these crimes, sometimes carrying different charges and penalties.

Undue Influence to Sex

Undue influence” has the meaning provided under Welf. & Inst. Code § 15610.70: excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity [Civ. Code § 1708.5.5(c); see Welf. & Inst. Code § 15610.70(a)(1)–(4) (factors to consider)].

Minor’s Consent

Consent is not a defense in a civil action under Civ. Code § 1708.5 when the plaintiff was a minor and the defendant who committed the sexual battery was an adult who was in a position of authority over the minor [Civ. Code § 1708.5.5(a)].

Position of Authority

For these purposes, an adult is in a “position of authority” if he or she, by reason of that position, is able to exercise undue influence over a minor, which includes, but is not limited to, a natural parent, stepparent, foster parent, relative, partner of any such parent or relative, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employee of one of those persons, or coworker [Civ. Code § 1708.5.5(b)].

Minor Sexual Activity w Another Adult.

Evidence of a plaintiff minor’s sexual conduct with an adult defendant is not admissible to prove consent by the plaintiff or the absence of injury to the plaintiff. Evidence of the minor plaintiff’s sexual conduct may only be introduced to attack the credibility of the plaintiff in accordance with Evid. Code § 783 or to prove something other than consent by the plaintiff if, upon a hearing of the court out of the presence of the jury, the defendant proves that the probative value of that evidence outweighs the prejudice to the plaintiff consistent with Evid. Code § 352 [Evid. Code § 1106(c)].

All states have an age of consent, in most it is sixteen, but in some states it is as low as fourteen. If this particular categorization does not appear in the sexual battery statute it will be mentioned elsewhere in the law under statutory rape law. If the victim of a sexual act is under the state’s legal age of consent, the offense is automatically considered sexual battery or statutory rape regardless of consent. However if the victim’s age is the only factor in the sex crime then the offender might be able to build a defense.

Remedies for Sexual Battery (Cal. Civ. Code §1708.5)


A person who commits a sexual battery on another is liable to that person for damages, including but not limited to general damages, special damages, and punitive damages [Civ. Code § 1708.5(b)].

The rights and remedies provided in Civ. Code § 1708.5 are in addition to any other rights and remedies provided by law [Civ. Code § 1708.5(e)].

General Damages for Sexual Battery Claim

These damages will include any financial award for physical pain as a result of the battery and emotional distress as a result of psychological trauma.

Special Damages for Sexual Battery Claim

These damages include the costs of future therapy or psychiatric care for victims of sexual battery (i.e. rape kits, hospital bills, etc.).

Punitive Damages for Sexual Battery Claim

Punitive damages may be awarded in an action for assault or battery if plaintiff shows that defendant acted with the requisite malice, oppression, or fraud. Civ. Code § 3294(a),(c); Thomas v. Doorley (1959) 175 Cal. App. 2d 545, 549.

Punitive damages are not recoverable if the defendant, acting in good faith, committed the assault or battery under a mistake of fact. Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891,

A showing that the defendant acted in the heat of anger after provocation serves to eliminate or reduce punitive damages [see Badostain v. Grazide (1896) 115 Cal. 425, 429.

Equitable Relief Including Injunction.

The court in an action pursuant to Civ. Code § 1708.5 may award equitable relief, including but not limited to an injunction, costs, and any other relief the court deems proper [Civ. Code § 1708.5(c)].

STATUTE OF LIMITATIONS

Code of Civil Procedure §335.1 extends the statute of limitations to two years.

Ordinarily, a cause of action for assault accrues at the time that plaintiff anticipates the harm, and a cause of action for battery accrues at the time of the physical contact, even though no observable damage occurs at that time. Sonbergh v. MacQuarrie (1952) 112 Cal. App. 2d 771, 774.

The statute of limitations begins to run at that time in theabsence of fraud, concealment, or duress on the part of the defendant that prevented the plaintiff from ascertaining the extent of his or her injury [see Sonbergh v. MacQuarrie (1952) 112 Cal. App. 2d 771, 774.

AFFIRMATIVE DEFENSES


As a general rule, one who consents to a touching cannot recover in an action for battery. However, it is well-recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609–610.

Under Civil Code 1708.5.5 – notwithstanding Section 3515, consent shall not be a defense in any civil action under Section 1708.5 if the person who commits the sexual battery is an adult who is in a position of authority over the minor.

For purposes of this section 1708.5.5, an adult is in a “position of authority” if he or she, by reason of that position, is able to exercise undue influence over a minor. A “position of authority” includes, but is not limited to, a natural parent, stepparent, foster parent, relative, partner of any such parent or relative, caretaker, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, employee of one of those aforementioned persons, or coworker.

For purposes of this section 1708.5.5, “undue influence” has the same meaning as in Section 15610.70 of the Welfare and Institutions Code.   Welfare and Institutions Code section 15610.70 provides:

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

Consent to Sex

If the victim is over the legal age of consent and does not have diminished mental capacity then proving consent is the first defense for someone accused of sexual battery. However if the victim was drunk or drugged then most states will not allow consent to be used as a defense.


Romeo and Juliet Defense

Romeo and Julliette laws in principle is that a person over 18 years old having sex with a minor may be permissible if they are in a genuine romantic relationship. California does not recognize Romeo and Juliette Defense. California has strict liability for statutory rape which is a person that is at least 18 years old having sex with a minor.


Though the laws surrounding sex with a minor are tough, most states have enacted an exception called the Romeo and Juliet clause. This means that if there is a small age gap between the defendant and victim and the sexual contact was consensual then this can be used as a valid defense. The age gap required for this defense will vary depending on the state but in most it is three years.

Mistake of fact

This is the most common defense used when the sexual battery charge is because of the age of the victim. The defendant can claim that they were unaware of the child’s age at the time of the sexual encounter and the act was otherwise consensual. If this defense is used, the burden of proof is on the defendant to prove that they were unaware of the child’s age.

Some states do not allow a mistake of fact defense and the defendant will instead present a nullification defense which requires them to present evidence to the consensual nature of the sexual encounter and ask the jury to nullify the conviction in light of the evidence. Some judges however might not allow the testimony required to present a nullification defense as the defendant would have to admit they had sexual contact with the victim.


Discrediting the victim

Another common defense employed in sexual battery cases is to discredit the victim by dredging up evidence of promiscuity. In fact in the past many states’ laws had promiscuity listed as a credible defense in their sexual battery statutes. Now there are rape shield laws in place in many states which disallow the use of a victim’s sexual history as a defense except in a few select circumstances.


Retest the DNA evidence

This has become extremely popular with the advances of DNA testing. All defendants have the right to request re-testing of any forensic evidence gathered in their case. While this might result in the charges against them being overturned, it could also result in their charges being cemented through the DNA results.

Brad Nakase, Attorney


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